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REPORTS 


CASES  IN  LAW  AND  EQUITY, 


DETERMINED  IN  THE 


SUPREME    COURT 


OF  THE 


STATE  OF  IOWA. 


GEORGE  6KEENE, 


OKE  OF  TUE  JUDGES. 


VOL.  IL 


CHICAGO : 

T.  H.  FLOOD  AND  COMPANY. 

1892. 


c 


Entered  according  to  Act  of  Congress,  in  the  year  One  Thousand  Eight 
Hundred  and  Fifty-Two,  by  George  Greene,  in  the  ClerF^  Office  of 
the  District  Court  of  the  United  States,  in  and  for  the  district  of  Iowa. 


JJuUge  of  tfje  5Eniteli  States  IBistrict  CEourt,  for  Eoiiia, 
Hoxx.  JOHN  J.  DYER. 

WiniUti  States  ©istrtct  ^Ittorneg, 
STEPHEN  WHICHER. 

Clerlt  of  tljE  Winittti  States  ©istrtct  dourt, 
THEODORE  S.  PARVIN. 

SEniteti  States  i$lars!)al, 
STEPHEN  B.  SHELLEDAY. 


3futiges  of  District  Courts 

DURING  THE  PERIOD  OF  THIS  VOLUME. 
Fv'st  District. 

Hon.  GEORGE  H.  WILLIAMS. 


Second  District. 

Hon.  JAMES  GRANT. 

Third  District. 
Hon.  CYRUS  OLNEY. 

Fourth  District. 

Hon.  JAMES  P.  CARLETON. 

Fifth  District. 

Hon.  WILLIAM  McKAY. 


r.ff  '-tow 


Jutigcs  of  tljE  Suprrme  CCourt. 
Hon.  JOSEPH  WILLIAMS,  Chief-Justice. 
Hon.  JOHN  F.  KINNEY,  Judge, 
Hon.  GEORGE  GREENE,  Judge. 

O r- 

<EAzik%  of  i\}z  Supreme  (Court. 

1st  District James  W.  Woods,  Burlington. 

2d    District Alexander  D.  Anderson,  Dubuque. 

3d    District Thomas  J.  Given,  Ottumwa. 

4th  District George  S.  Hampton,  Iowa  City. 

5  th  District Lewis  Whitten,  Fort  Des  Moines. 


Present  gutiges  of  tlje  District  Courts. 

First  District. 

Hon.  RALPH  P.  LOWE. 

Second  District. 
Hon.  THOMAS  S.  WILSON. 

Th  ird  District. 

Hon.  J.  C.  KNAPP. 

Fourth  District. 

Hon.  JAMES  P.  CARLETON. 

Fifth  District. 

Hon.  WILLIAM  McKAY. 

Sixth  District. 

Hon.  ALLEN  A.  BRADFORD. 


CASES  EEPOETED  IN  THIS  VOLUME. 


A 

«40> 

rAom 

Chambers,  Diltz  v.   . 

.    479 

Abbee  v.  Higgins,     .         , 

.    535 

„         V.  Games, 

.     320 

Albright,  Roberts  «.          , 

.     120 

„          State  V.   . 

.     308 

„          Wilson  V.  .        , 

.     125 

Chapman,  Bush  v.     , 

.     649 

Alexander,  Price  v.  . 

.    427 

„         V.  Morgan, 

.     874 

n          Rogers  v.        , 

.     237 

Chittenden,  Baraey  «, 

.     165 

»>            ^   »      ^        ' 

.     443 

Clark,  Wright  v. 

.       86 

Arnold  c  Grimes,     . 

.      77 

Coffin  V.  Knott, 

.     682 

Austin  «.  Carpenter, 

.    131 

Cole,  Graves  v.          . 

.     467 

Conly,  Fletcher  v.     , 

-       88 

B 

Cooley,  Phillips  v.     ,        , 

.    456 

Coonrod  v.  Benson,  . 

.     179 

Bagley,  Rigga  v.        ,        , 

.    383 

Coriiell  v.  Doolittle, 

.     385 

Baird,  Pierson  v.       . 

.     235 

Crookshank  v.  Mallory,     . 

.     257 

Baker  v.  Harrow,      . 

.     201 

Cuddleback  v.  Parks, 

.     148 

Barber,  Taylor  v. 

.     350 

Culver  V.  Whipple, 

.     365 

Barney  v.  Cliittenden,      , 

.     165 

Curtis,  Davis  v. 

.    575 

Bates,  Daniels  t7. 

.     151 

Bennett,  Hall  v. 

.     466 

D 

Benson,  Coonrod  v.  .        , 

.     179 

Bissell,  Smith  v. 

.     379 

Daniels  v.  Bates,       .         , 

.    151 

Bonney  v.  Van  Buren  Co. 

,       .     230 

„       Durham  v.   .        , 

,     618 

Boon  V.  Wright, 

.     458 

„       Preston  v.     , 

.     537 

Boyle,  Cameron  v.     . 

.     154 

Darling  v.  MeachuTB, 

.     602 

Bi-adley  v.  Kennedy, 

.     231 

Daugherty,  Olive  «.  .         , 

.    393 

V.  Me  Call,    . 

.     214 

Davis  V.  Curtis, 

.    675 

Brown  v.  Harris, 

.     505 

„      Depew  V. 

.     260 

„      V.  Holleubeck, 

.     318 

„      V.  Fish,   . 

.     447 

„     V.  Tomlinson, 

.     625 

„      Co.,  Steele.    . 

.     469 

„     n.  Scott, 

.     454 

De  France  «;.  Spencer, 

.     462 

Buckley  v.  State 

.     162 

De  Louis  v.  Meek,    . 

55 

Burlerson,  Knott  v.  . 

.    600 

Depew  V.  Davis, 

.     260 

„          V.  Teeple, 

.     642 

Dickerson  v.  Shelby, 

.     460 

Burnam,  Hopping  v. 

.       39 

Diltz  V.  Chambers,    . 

.    47rt 

Bush  V.  Chapman,    . 

.     549 

„     V.  Graft,  . 

.     571 

Dixon,  Rickner  v.     . 

.     691 

c 

Doolittle,  Corriell  c. 

.     385 

Drebilbis  v.  Hutton, 

.     693 

Cadle,  State  v.  . 

.     400 

Durham  v.  Daniels, 

.    518 

Cameron  v.  Boyle,    . 

.     154 

Carpenter,  Austin  v. 

.     132 

E 

Caruthers  v.  Van  Hagan, 

.     481 

Casey,  Fitch  v. 

.     SOO 

Edwards,  Steinhelber  tu 

.     366 

Cass  V.  State,    . 

.     353 

Ellis  V.  Mosier, 

.     247 

Gassaday,  Lucas  v,    . 

.     208 

Ely,  Greene  &  Brothers  «. 

.     508 

VI 


CASES  KEPORTED. 


Ely,  Mix  V. 

Ex  parte,  Hampton  v. 


PAas 

513 
137 


Fish,  Davis  v.   .        .        , 

447 

Fitch  V.  Casey,           .         . 

30C 

Fletcher  v.  Conly,     . 

.      88 

Forsyth  &  Co.  v.  Ripley,  . 

181 

Frentress  v.  Markle, 

553 

Fulweider  v.  Peterkin, 

622 

Fulweiler  v.  Siuger, 

372 

Gt 


Galloway  v.  Trout,    . 

695 

Games,  Chambers  v. 

320 

„      V.  Mannmg,  . 

251 

Garretson,  Mears  v.  . 

316 

Gaveny  v.  Hiutoii,    . 

344 

Goodwin  v.  Thompson,     . 

329 

Gordon  v.  Mounts,    . 

243 

„       Shaw  V. 

876 

Grable  v.  State, 

559 

Graft  V.  Diltz, 

570 

Graves  v.  Cole, 

467 

Gray,  Nelson  v. 

397 

Greeue  &  Brothers  v.  Ely, 

608 

Greenough  v.  Wigginton, 

435 

Grimes,  Arnold  v.     . 

.      77 

Hall  V.  Bennett,        ,        . 

.    466 

„    V.  Washington  Co.,    . 

.     473 

Hampton  v.  Ex  parte,       . 

.     137 

Harlan  v.  Moriarty, 

.     486 

Harriman  v.  State,  .         ■ 

.     270 

Harris,  Brown  v. 

.     605 

Harrow  v.  Baker,      . 

.     201 

Hedinger  v.  Silsbee, 

.     363 

Hicks  V.  Walker, 

.     440 

Higgins,  Abbee  v.     . 
Hfidreth  v.  Tomlinson, 

.     635 

.     360 

Hindi  V.  Weatherford, 

.     244 

Hine  v.  Houston, 

.    161 

Hinton,  Gaveny  v.    . 

.     344 

Hollinbeck,  Brown  v. 

.     318 

Holmes  v.  State, 

.    601 

Hopping  V.  Burnam, 

.       39 

Houston,  Hine  v. 

.     161 

Hoyle,  Lyne  v. 

.     135 

Hughes  V.  Miller,      . 

9 

,,       Wright  V. 

.     142 

Huner  v.  Reeves, 

.     190 

Hutton  V.  Drebilbis, 

.     593 

.Tacobson  v.  Manning, 
Jamison  v.  Reid, 
Jefferson  Co.  v.  Savory, 
Johnson,  Strawser  v. 


Kennedy,  Bradley  v, 
Kerr  v.  Leighton, 
Kimble  v.  Riggin, 
Knott  V.  Burlerson, 
„       Coffin  V. 


Lauman,  Warburton  v. 
Leighton,  Kerr  v. 
Levins  v.  Sleator, 
Lewis  V.  Parker 

„      V.  Sutliff, 
Livermore,  Shaw  v. 
Lloyd  V.  McCkire, 
Lucas  V.  Cassaday, 

„      V.  Snyder, 

»      v.       „ 
Lyne  v.  Hoyle, 

M 


Mackenzie,  McMullin  v. 
Mallory,  Crookshank  v. 
Manning,  Games  ».    . 

,,  Jacobson  v. 

Markle  v.  Frentress, 
Marsh,  Wright  v.       , 
Marshall  v.  Marshall, 
Marshman,  Richards  v. 
Matherson,  Wile  v, 
McCall,  Bradley  v.    . 
McCasky  v.  School  District, 
McClure,  Lloyd  v.     . 
McMullin  V.  Mackenzie, 
Meachum,  Darling  v. 
Mears  v.  GaiTCtson,  . 
Meek,  De  Louis  v.    , 
Millard  v.  Singer       . 
Miller,  Hughes  v. 

„      Roberts  v.     . 
Mix  V.  Ely, 
Morgan,  Chapman  v, 
Moriarty,  Harlan  v.  . 
„         Robinson  v, 
Mosier,  Ellis  v. 
Mounts,  Gordon  v.    , 
Mourer,  Zerfing  v. 
Mullin  V.  Mackenzie, 


685 
394 
238 
373 


CASES  REPORTED. 


vu 


PAOK 

Murphy  v.  Reed, 

, 

.    669 

„       Reed  v. 

, 

.    574 

„       Walsh  V. 

• 

.    227 

N 


Nash  V.  State, 
Nelson  v.  Gray, 


Ogilve  &  Co.  V.  Viele, 
Olive  V.  Daugherty, 


Parker,  Lewis ».       .        ,        . 
Parks,  Cuddleback  v,        , 
Parris  v.  State,  ,         .         , 

Patterson  v.  State  of  Indiana,  . 
Peterkin,  Fulweider  v. 
Phillips  V.  Cooley,     . 

„        Wright  V.     .         .        , 
Pierson  v.  Baird, 

„       Rife  V,  .         .         . 

Preston  v.  Daniels    . 
Price  &  Co.  v.  Alexander  &  Co., 

B 


286 
397 


826 
893 


811 

148 
449 
492 
622 
456 
191 
235 
129 
636 
427 


Reed  *.  Murphy, 

.    668 

»     *'•        »»            •        • 

.    674 

Reeves,  Huner  •. 

.    190 

„      V.  Royal, 

.    451 

Reid,  Jamison  v. 

.     394 

„     V.  Wright 

.      16 

Richards  v.  Marshman,     . 

.    217 

Richman  v.  State, 

.     532 

Rickner  v.  Dixon, 

.    691 

Rife  V.  Pierson, 

.     129 

Riggin,  Kimble  v.     . 

.     245 

Riggs  V.  Bagley, 

.     383 

Ripley,  Forsyth  &  Co.  r. 

.     182 

Roberts  v.  Albright, 

.     120 

,,       V.  Miller,     . 

.     122 

Robinson  v.  Moriarty, 

.    497 

Rogers  v.  Alexander, 

.    237 

M       '"•           » 

.    443 

Ross,  Wright  v.         , 

.    266 

Royal,  Reeves  v. 

.    461 

s 

Savory,  JefiFerson  Co.  r. 

.    238 

School  District,  McCasky 

9.     .    482 

Scott  V.  Brown, 

.     454 

,,     V.  Sweet, 

.     224 

Shaffer  v.  Trimble,  . 

.     464 

Shaw  V.  Gordon, 

PAoa 

376 

„     V.  Sweeney, 

687 

„     V.  Livermore, 

338 

„      Steamer   "Lake   of    the 

Woods  "v. 

91 

Shelby,  Dickerson  v. 

460 

Shoemak,  Wiley  v.    , 

205 

Silsbee,  Hedinger  v. 

3(53 

Singer  v.  Fulweiler, 

372 

,,       Millard  v.       .         .         . 

144 

Sleator  v.  Levins,     . 

605 

Smith  V.  Bissell, 

•67d 

Snyder,  Lucas  v.       .        .         . 

490 

»             „        V,        .          .          , 

499 

Spencer,  De  France  ». 

462 

Springer  v.  Stewart, 

390 

State,  Buckley  »•       .         .         . 

162 

State  V.  Cadle, 

400 

„     V.  Cass, 

353 

,,     V.  Chambers,  . 

•^08 

„     Grable  v.           .         .         . 

559 

„     Harrimaa  v.     . 

270 

„     Holmes  v.         .         .         , 

501 

„    of  Indiana,  Patterson  v.  . 

492 

„     Nash  V.            ... 

286 

„     Parris  v.           ... 

449 

„     Richman  9.       .        .        . 

532 

„     Trimble  v.        .         .         . 

404 

Steamer  "  Lake  of  the  Woods  " 

V.  Shaw,        .... 

91 

Steel  V.  Davis  Co. 

469 

Steinhelber  v.  Edwards,    . 

366 

Stewart,  Springer  v. 

390 

Strawser  r.  Johnson, 

373 

Sutliff,  Lewis  r.        ,        .        . 

186 

Sweeney,  Shaw ».     .        ,        . 

587 

Sweet,  Scott  v.          .        .        . 

224 

T 

Tayorr.  Barber,       .        . 

350 

Teeple,  Burlerson  r. 

543 

Thompson,  Goodwin  V«     • 

329 

Tomliuson,  Brown  v.         , 

525 

„           Hildreth*      . 

3iiC 

Trimble  v.  State,      .        . 

404 

Trout,  Galloway  r. 

695 

V 

Van  Buren  Co.,  Bonney». 

230 

"Van  Hagan,  Carothers  V, 

481 

Viele  V.  Ogxlvie  &  Co.,     . 

326 

w 

Walker,  Hicks  v.       .        .         , 

440 

Walsh  V.  Murphy      .         , 

227 

Waiburton  v.  Lauman,     . 

420 

VIU 


CASES  REPOETED. 


PAGB 

PAOB 

Washington  Co.,  Hall  v.  . 

.     473 

Wright 

V.  Hughes,  .         . 

.     142 

Watkins,  Wright  v. 

.     547 

V,  Marsh,     .         , 

.       94 

Weatherford,  Hiuch  v. 

.     244 

V.  Phillips,  .         • 

.     191 

Westbrook  v.  Westbrook, 

.     598 

Eeed  v.        ,         . 

.       15 

Wigginton,  Greenough  v. 

.     435 

V.  Ross,       .         , 

.     266 

Whipple,  Culver  v. 

.     365 

V.  Watkins,          • 

.     647 

Wile  V.  Matherson,           , 

.     184 

Wiley  V.  Shoemak,            . 

.     205 

Wilson  V.  Albright,          • 

.     125 

z 

Wright  V.  Boon,       .         • 

.     458 

„       V.  Clark,     .        , 

•      86 

Zerfiing 

V.  Mourer,  •        • 

.     620 

CASES  IN  LAW  AND  EQUITY. 


DETERMINED  IN  THB 


SUPREME  COURT  OF  THE  STATE  OF  IOWA, 

BURLINGTON,  MAY  TERM,  A.D.  1849, 
In  the  Third  Year  of  ilie  State. 


Hon.  JOSEPH  WILLIAMS,  Chiej  Justice. 
Hon.  JOHN  V  KINNEY,    )  j   i 
Hon.  GEO.  GREENE,  \  •'""^«*- 


->•«•< 


HUGHES  V.  MILLER, 

When  a  nonsuit  or  default  is  set  aside,  notice  must  be  served  on  the  party 

at  least  six  days  before  the  new  trial.     But  this  notice  may  be  waived  by 

general  appearance  of  the  party. 
Party  cannot  object  to  defective  notice  after  he  consents  to  have  a  jury  called. 
A  jndg-ment  Ijy  default  for  costs  may  be  set  aside  and  the  entire  case  re» 

adjudicated. 
A  trial  of  the  riarht  of  property  cannot  be  had,  under  the  statute,  after  tlia 

property  has  been  sold  and  possession  passed  to  a  third  person,  by  virtue 

of  legal  process. 
In  a  proceeding  to  try  the  right  of  property  taken  on  execution,  a  judgment 

by  default  against  the  claimant  will  authorize  the  officer  to  proceed  with 

the  sale. 

Error  to  Lee  District  Court. 

Opinion  hy  Williams,  C.  J.     This  action  was  instituted 
by  James  Miller,  by  his  a<^ent,  W.  M.  Andrews,  againsb 
Vol.  IL  2 


10  SUPREME  COURT  CARES, 

Hughes  V.  Miller. 

Ross  B.  Hiiglies,  under  the  provisions  of  the  statute  for 
the  trial  of  the  right  of  property  seized  under  execution. 
Rev.  Stat,  331. 

The  facts  of  the  case  are  briefly  set  forth  in  an  agree- 
ment of  the  attorneys  and  the  bill  of  exceptions.  The 
agreement  of  the  attorneys  is  as  follows : 

"  It  is  agreed  to  admit  on  this  trial  as  evidence,  that 
there  was  a  judgment  on  the  docket  of  Zadock  Smith,  a 
justice  of  the  peace  of  Lee  county,  in  favor  of  Ross  B. 
Hughes  and  against  William  M.  Andrews,  on  which  exe- 
cution issued  and  was  levied  upon  the  buggy  in  dispute. 
That  claimant  Miller  on  his  trial  was  nonsuited,  as  men- 
tioned in  the  justice's  transcript.  That  on  the  6th  day  of 
March,  1847,  the  said  nonsuit  was  ordered,  and  on  the  8th 
day  of  March,  1847,  the  buggy  was  sold  under  the  levy 
aforesaid  to  Callowhill  E.  Stone,  and  possession  given  by 
the  constable;  and  that  on  the  11th  of  March,  1847,  non- 
suit was  set  aside  and  a  new  trial  granted,  as  set  forth  ir 
said  transcript."     April  29,  1848. 

The  first  error  complained  of  in  the  proceedings  below, 
is,  that  "  the  summons  issued  by  the  justice  was  not 
served  six  days  before  the  retm-n  day  thereof,  as  required 
by  the  statute." 

Among  other  proceedings  copied  into  the  bill  of  excep- 
tions, is  the  constable's  return  as  endorsed  on  the  sum- 
mons. By  the  return  it  appears  that  the  service  was 
made  by  the  constable  on  the  loth  day  of  March,  1847, 
and  the  day  appointed  for  the  trial  of  the  cause,  as  speci- 
fied in  the  summons,  was  the  20th  day  of  March,  1847. 
This  state  of  facts  as  to  the  service,  gives  the  defendant  at 
the  utmost  but  five  days'  notice.  The  statute  prescribing 
the  mode  of  procedure  to  be  observed  by  justices  of  the 
peace  in  case  of  nonsuit  and  judgment  by  default,  where 
such  nonsuit  or  default  is  set  aside  and  a  new  trial  granted, 
requires  notice  to  the  opposite  j^arty  of  the  setting  aside 
thereof,  and  that  "  the  notice  shall  be  served  on  the  i)arty 
or  his  agent  six  days  before  the  trial,  upon  rehearing  of  the 
lause."    This  service  is  therefore  defective,  and  the  objec- 


BURLINGTON,  MAY,  1849.  11 


Huj^hes  V.  Miller. 


iion  tc  \i  would  prevail  had  not  the  party  makii.g  it,  by 
his  own  act,  waived  it.  The  record  shows  that  the  defend- 
ant appeared  on  the  20th  of  March,  1847,  the  day  set  for 
rehearing,  and  by  his  attorney  demanded  a  jury  trial ;  and 
that  accordingly,  a  jury  was  called  before  the  justice,  in 
-•.>f /.ler  to  a  full  trial  on  the  merits.  The  forms  of  pleading, 
as  observed  and  required  in  the  practice  of  the  district 
court,  are  not  necessary  in  trials  before  justices  of  the 
peace.  After  the  commencement  of  a  suit  before  a  justice 
of  the  peace,  the  proceedings  of  the  parties  may  be,  and 
mostly  are,  oral.  A  proper  entry  of  the  material  and 
important  motions  and  acts  of  the  parties  concerned,  is 
made  in  the  docket  of  the  justice,  for  the  benefit  of  the 
parties  in  the  legal  adjustment  of  their  rights.  Here  the 
record  of  the  justice  shows  that,  in  obedience  to  the  sum- 
mons, and  service  thereof,  the  party  appeared,  and  by  his 
attorney  consented  to  proceed  to  a  trial  of  the  cause  by 
jury ;  that,  after  so  consenting,  he  sought  to  take  advantage 
of  the  defect  in  the  service  of  the  summons.  This  he 
could  not  do.  If  he  sought  to  avail  himself  of  this  objec- 
tion, he  should  have  done  so  before  he  consented  to,  or 
requested  the  calling  of,  a  jury.  He  might  have  appeared 
specially  to  object  to  the  service,  and  then,  upon  doing  so, 
if  his  objection  was  overruled,  he  might  have  stood  on 
the  defense,  yielding  no  consent  or  acquiescence ;  and  thus 
avoided  a  waive  of  the  defect  in  service.  Conley  v.  Good^ 
Breese,  96;  Gun  v.  Wheeler,  1  Scam.,  555.  Having  con- 
sented, and  elected  to  go  to  the  jury  with  his  case,  he  was 
bound  by  such  election.  His  objection  was  too  late.  He 
had  waived  it. 

The  second  error  assigned  is,  that  "  after  judgment  by 
default  had  been  entered  by  the  justice  for  costs  of  suit, 
he  reversed  his  judgment,  and  re-adjudicated  the  case  by 
granting  a  new  trial.  *  The  Rev.  Stat.,  324,  §  3,  authorizes 
the  justice,  in  case  of  nonsuit  or  default,  to  open  the  case 
anew  upon  a  proper  showing  of  the  party,  within  a  speci- 
lied  time,  according  to  the  provisions  of  the  statute.  The 
record  of  the  justice  shows  no  error  in  this  proceeding. 


12  SUPREME  COURT  CASES, 

Hughes  V.  Miller. 

The  adjudication  of  tlie  district  court  therein  furnishes  no 
ground  of  complaint  for  error  here. 

The  third  error  assigned  is,  the  refusal  of  the  court  to 
give  the  instruction  to  the  jury  which  was  asked  for  by 
the  defendant's  counsel,  which,  as  appears  by  the  bill  of 
exceptions,  was  as  follows : 

The  defendant  asks  the  court  to  instruct  the  jury  "  that 
no  trial  of  the  right  of  property  could  take  place  between 
the  parties  to  this  suit,  after  the  property  had  been  sold 
upon  legal  process  and  passed  to  a  third  person,  the  pur- 
chaser;" which  instruction  was  refused  by  the  court,  and 
an  exception  taken  by  defendant's  counsel. 

This  provision  is,  by  virtue  of  statutory  provision,  en- 
acted for  the  protection  of  those  who  might  be  aggrieved 
by  the  officers  of  the  law,  seizing  under  execution  process, 
their  property,  as  the  property  of  defendants,  parties  in 
the  action  and  judgment  upon  which  such  execution  had 
been  issued.  This  proceeding,  as  the  record  shows,  having 
been  commenced  by  the  plaintiff  against  the  plaintiff  in 
the  execution,  and  in  pursuance  of  the  provisions  of  the 
statute,  the  constable  and  the  execution  plaintiff  were 
duly  notified  of  the  plaintiff's  claim  to  the  property  levied 
on.  On  the  day  set  for  the  hearing,  the  plaintiff  was 
nonsuited,  and  judgment  was  entered  against  him  for  the 
costs  of  suit.  The  property  being  a  buggy,  was  in  the 
possession  of  the  constable  by  virtue  of  the  levy  made  pre- 
viously, and  of  course  liable  to  sale  to  satisfy  the  judgment 
upon  which  the  execution  had  issued,  in  the  event  of  the 
claimant  failing  to  make  good  his  claim  by  judgment  in 
his  ftivor,  in  the  proceeding  under  the  statute.  After  the 
nonsuit,  which  was  entered  on  the  6th  day  of  March, 
1847,  and,  on  the  8th  day,  the  same  month,  the  constable, 
in  obedience  to  the  mandate  of  the  execution,  proceeded 
and  sold  the  property  to  one  Callowhill  E.  Stone,  into 
whose  possession  it  was  then  delivered.  On  the  11th 
day  of  the  same  month,  the  nonsuit  was  set  aside,  and 
a  new  trial  granted  by  the  justice  at  the  instance  of 
the  claimant.     The  question  here  presented  for  adjudica- 


BURLINGTON,  MAt,  1849.  13 

Hughes  V.  Miller. 

tion,  is  this  :  Did  the  property  claimed  by  the  plaintiff  in 
this  action  continue  to  be  subject  to  legal  restraint  in  the 
hands  of  the  constable,  who  held  it  by  virtue  of  the  exe- 
cution and  levy  thereon,  after  the  nonsuit  and  judgmcM it 
for  costs,  so  as  to  prevent  the  officer  from  proceeding  to 
sell  it  ?  And  did  the  renewing  of  the  suit,  by  taking  oil 
the  nonsuit,  render  the  lien  on  the  property  good  by  reviv- 
ing it,  as  it  was  at  the  commencement  of  the  action  ? 

The  constable  was  bound  by  the  requirements  of  the 
statute,  which  prescribes  the  duties  of  such  officer,  when 
the  execution  is  put  into  his  hands,  to  proceed  promptly 
to  make  the  money  of  the  defendant  by  levy,  on  his  goods 
and  chattels.  Upon  making  the  levy,  he  is  du-ected  to 
advertise  the  property  and  sell  it  within  a  time  certain, 
and  to  make  his  return  to  the  justice.  The  claimant  of 
the  jjroperty,  having  availed  himself  of  the  provisions  of 
the  act  of  the  legislatm'e  by  notifying  the  constable  of  his 
claim,  and  the  suit  having  been  commenced  thereon  before 
the  justice,  further  proceeding  under  the  execution  and 
levy  was  by  law  suspended  until  the  termination  of  the 
trial  of  the  right  of  property,  (Rev.  Stat.,  332,  §  11,)  until 
the  claim  of  the  plaintiff  in  that  proceeding  should  be 
*'  abated,  dismissed,  or  a  final  decision  had  thereon."  The 
record  shows  that  the  constable  did  not  proceed  to  sell  the 
property  until  after  the  action  had  been  disposed  of  by  a 
nonsuit,  and  judgment  for  costs  had  been  entered.  Two 
days  afterward  he  sold  the  property  on  the  execution,  and 
delivered  possession  thereof  to  the  purchaser.  This  he 
liad  a  right  to  do.  The  proceeding  by  which  he  had  been 
restrained  from  selling  the  property  levied  on  execution, 
was  legally  at  an  end,  and  the  obligations  of  official  duty 
were  upon  him.  He  was  not  bound  to  wait  until  the  claim- 
ant might,  at  the  last  moment  allowed  by  law,  have  the 
judgment  of  nonsuit  set  aside  and  his  action  recommenced. 
In  a  proceeding  like  this,  the  party  seeking  the  benefit  of 
the  statute  must  be  vigilant,  and  act  with  due  regard  for 
the  rights  of  others  interested,  and  the  s})irit  of  the  law. 
The  statute  providing  for  the  trial  of  the  right  of  property, 


14  SUPREME  COURT  CASES, 


Huffhes  V.  Miller. 


in  terms  not  to  be  misconstrued,  inculcates  prompt  and 
speedy  action  in  the  adjustment  of  the  rights  of  the  parties. 
By  the  entry  of  the  judgment  of  nonsuit,  the  claimant  was 
as  much  out  of  court,  and  his  proceeding  concluded,  as  if 
he  had  not  commenced  his  action.  This  was  the  conse- 
quence of  his  own  default,  and  it  was  his  neglect,  in  not 
promptly  recommencing  his  action,  or  opening  the  judg- 
ment of  nonsuit,  which  left  the  property  to  be  disposed  of 
by  the  exemption  process,  and  thus  pass  from  the  posses- 
sion of  the  constable  :  when  delivered  to  the  purchaser,  it 
was  beyond  the  reach  of  the  claim  of  the  plaintiff  under 
the  provisions  of  this  statute.  In  view  of  the  spirit  of  the 
law,  we  can  see  no  difference  between  the  determination  of 
the  suit  by  abatement  or  dismissal,  and  default  or  nonsuit. 
In  either  case  the  party  might  commence  again.  The 
statute  only  holds  the  property  in  duress,  and  restrains 
the  constable  from  selling,  until  the  termination  of  the  suit 
by  claimant.  There  could  be  no  certainty  that  the  party 
claimant  would  renew  the  proceeding,  more  than  there 
was  that  he  might  resort  to  some  other  mode  of  redress. 
In  a  proceeding  like  this,  interfering  with  the  ordinary 
process  of  law,  involving  the  obligations  of  ministerial 
officers  of  the  law,  and  the  rights  of  parties  in  legal  action, 
strict  compliance  with  the  statute,  and  a  vigilant  observ- 
ance of  the  spirit  of  the  law,  should  be  inculcated. 

We  are  of  opinion,  therefore,  that  the  court  below  erred 
in  refusing  the  instruction  which  was  asked  for  by  the 
defendant's  counsel. 

Judgment  reversed, 

Geo.  C.  Dixon,  for  the  plaintiff  in  error, 

J.  A.  C.  Hall,  for  defendant. 


BURLINGTON,  MAY,  1849.  15 


Reed  v.  ^Vriirht. 


REED  V.  WRIGHT. 

It  is  the  riiflit  and  duty  of  the  judicial  power  in  the  state  to  declare  all  acts  of 
the  legislature,  made  in  violation  of  the  constitution,  to  he  void. 

The  legislature  of  Wisconsin  territory  could  not  curtail  rights  conferred,  nor 
confer  rights  withheld,  hy  the  ordinance  of  1787. 

Legislation  in  derogation  of  trial  by  jury,  and  by  proceedings  according  to 
the  course  of  the  common  law,  is  in  conflict  with  that  ordinance,  and 
therefore  void. 

An  act  of  the  legislature  of  the  territory  of  Wisconsin,  entitled  "  An  act  for 
the  partition  of  the  half-breed  land,  and  for  other  purposes,"  approved 
January  16,  1838,  and  an  act  supplementary  thereto,  approved  June  22, 

1838,  and  also  an  act  passed  by  the  Iowa  legislature,  approved  January  2,';, 

1839,  to  repeal  both  of  said  acts,  are  repugnant  to  the  ordinance  of  1787, 
and  also  to  the  organic  law  of  Wisconsin  and  Iowa,  and  are  therefore  void. 

So  also  are  judgments  rendered  by  virtue  of  said  laws. 

Void  judgments  are  never  binding,  but  judgments  merely  voidable  may  be 
enforced  until  reversed  by  a  superior  authority. 

Judgments  from  courts  of  general  jurisdiction  cannot  be  collaterally  im- 
peached, unless  absolutely  void  upon  their  face. 

In  an  action  of  right,  the  piaintitl"  must  recover  upon  the  strength  and 
validity  of  liia  own  title,  and  should  show  a  valid  subsisting  interest  in  the 
land.     No  such  interest  can  accrue  from  a  void  judgment. 

Error  to  Lee  District  Court. 

Opinion  hi  Kinney,  J.  This  was  an  action  of  right, 
brought  in  the  district  court  of  Lee  county,  by  the  plain- 
tiff against  the  defendant  to  recover  the  south-east  quarter 
of  section  2,  in  township  65  north,  and  range  5  west, 
within  the  tract  of  land  known  as  the  half-breed  Sac  and 
Fox  reservation,  in  Lee  county. 

On  the  trial  of  the  cause,  the  plaintiff  in  error  having 
proved  the  defendant  in  possession  of  the  land  in  contro- 
versy at  the  time  of  the  commencement  of  the  suit,  for  the 
purpose  of  showing  title  to  the  land,  offered  in  evidence : 
First,  the  treaty  between  the  United  States  and  the  Sac 
and  Fox  tribes  of  Indians,  of  date  August  4, 1824,  making 
a  reservation  of  lands  for  the  use  of  the  half-breeds  of  said 
tribes  of  Indians. 

Also,  an  act  of  Congress,  approved  June  30,  1 834,  en- 


16  SUPREME  COURT  CASES, 

Eeed  v.  Wright. 

titled  "  An  act  to  relinquish  the  reversionary  interest  of 
the  United  States  in  a  certain  Indian  reservation  lying 
between  the  rivers  Mississippi  and  Des  Moines."  Also 
an  act  of  the  territorial  legislature  of  Wisconsin,  approved 
January  16,  1838,  entitled  "An  act  for  the  partition  of 
the  half-breed  lands  and  for  other  purposes."  Also  an 
act  of  the  territory  of  Wisconsin,  approved  June  22,  1838, 
entitled  "  An  act  supplementary  to  an  act,  entitled  An 
act  for  the  partition  of  the  half-breed  lands,  and  for  other 
purposes."  Also  an  act  of  the  territorial  legislature  of 
Iowa,  approved  January  25,  1839,  entitled  "  An  act  to 
repeal  an  act  of  the  Wisconsin  legislature,  entitled  An 
act  for  the  partition  of  the  half-breed  lands,  and  for  other 
purposes,"  and  an  act  supplementary  thereto,  approved 
June  22,  1838;  which  said  laws,  and  the  treaty  afore- 
said, were  read  to  the  jury,  and  embodied  into,  and 
made  part  of  the  bill  of  exceptions.  The  plaintiff  also 
offered  two  judgments,  under  and  by  virtue  of  the  act 
of  the  Iowa  legislature,  and  the  executions  and  returns 
thereon. 

The  Wisconsin  act,  repealed  by  the  Iowa  act,  after  re- 
citing that  it  is  expedient,  in  order  to  the  settlement  of  the 
half-breed  tract,  and  the  validity  of  the  titles  of  the  claim- 
ants should  be  determined,  and  that  partition  of  said  lands 
among  those  having  claims  should  be  made,  or  a  sale 
thereof  for  the  benefit  of  such  valid  claimants,  enacts  that 
all  persons  claiming  any  interest  in  said  lands,  under  said 
treaty  and  act  of  Congress,  are  required,  within  one  year 
from  the  passing  of  the  act,  to  file  with  the  clerk  of  the 
district  court  of  the  count}  jf  Lee,  Wisconsin  territory,  a 
written  notice  of  their  respective  claims,  designating  the 
half-breed  under  whom  they  claim,  and  the  extent  of  their 
claims,  which  notice  was  requu'ed  to  be  accompanied  with 
a  true  copy  of  all  the  title  papers  and  deeds  relating  to  the 
rights  therein  set  forth. 

Section  2  provides  that  Edward  Johnston,  David  Brig- 
ham  and  Thomas  S.  Wilson  shall  be  commissioners  for  the 
purpose  of  taking  and  receiving  the  testimony  concerning 


BURLINGTON,  MAY,  1849.  17 

Reed  v.  Wright. 

the  validity  of  claims  presented  and  filed,  each  of  whom 
is  to  receive  six  dollars  per  day  for  his  services. 

Section  1 1  provides  that  all  persons  claiming  any  in- 
terest in  said  lands  under  said  treaty  and  act  of  Congress, 
who  shall  not  file  their  chiims  as  required  by  the  statute, 
shall  be  for  ever  barred  frimi  setting  up  any  right  in  said 
lands,  or  in  the  proceeds  of  the  sale  thereof,  &c. 

Section  12  appoints  certain  commissioners  with  powers, 
under  the  order  and  direction  of  the  com^t  of  Lee  county, 
to  make  sale,  &c.,  of  the  land. 

The  act  of  the  Iowa  legislature  offered  in  evidence,  after 
repealing  in  §  1  the  foregoing  act,  provides  that  the  several 
commissioners  appointed  under  that  act  to  sit  and  take 
testimony  may  immediately,  or  as  soon  as  convenient, 
commence  action  before  the  district  court  of  Lee  county 
for  the  several  accounts  against  the  owners  of  the  said 
half-breed  lands,  and  give  eight  weeks'  notice  in  the  ''  Iowa 
Territorial  Gazette"  to  said  owners,  of  such  suit;  and  the 
judge  of  the  said  district  court,  upon  the  trial  of  such 
suits  at  its  next  term,  shall,  if  said  accounts  are  deemed 
correct,  order  judgment  for  the  amount  and  costs  to  be 
entered  up  against  said  owners,  and  said  judgment  shall  be 
a  lien  upon  said  lands  and  a  right  of  redemption  thereto ; 
and  said  judgment,  when  entered,  shall  di^aw  interest  at 
the  rate  of  12  per  cent,  per  annum. 

Section  3  enacts,  that  the  word  "  owners  "  of  the  half- 
breed  lands  lying  in  Lee  countv  shall  be  a  sufficient 
designation  in  said  suits. 

Section  4  provides,  that  all  the  expenses  necessarily  in- 
curred by  said  commissioners  in  the  discharge  of  their 
duties  under  said  act,  shall  be  included  in  the  accounts. 

Section  5,  that  the  trial  of  said  suit  or  suits  shall  be 
before  the  court,  and  not  by  jury,  and  that  the  act  shall 
receive  a  liberal  construction,  &c. 

The  judgments  offered  in  evidence,  obtained  by  virtue  of 
said  act  of  the  legislature  of  the  territory  of  Iowa,  are  as 
follows:  "And  afterwards,  on  the  30th  day  of  August  in 
the  year   1839,  the   auditor  ap})ointed   to   examine   and 


18  SUPREME  COURT  CASES, 

Keed  v.  Wright. 

report  in  tlie  case  of  David  Brigham  v.  The  Owners  of  the 
half-breed  lands,  having  examined  witnesses,  &c.,  reports 
as  follows,  to  wit :  That  David  Brigham  is  entitled  to 
receive  from  the  owners  of  the  half-breed  lands  the  sum 
of  $818  ;  all  of  which  is  respectfully  submitted. 

Oliver  Weld,  Auditor.'*^ 
Whereupon   the  court  accepted  the   said  report,   and 
ordered  that  the  plaintiff  recover  of  the  said  defendants 
the  sum  of  $818,   the   amount  stated  in  the   auditor's 
report,  and  costs  in  this  behalf  expended. 

And  in  the  case  of  Edward  Johnston  v.  The  Owners  of 
the  half-breed  lands  lying  in  Lee  county,  the  report  and 
judgment  are  as  follows  :  Now  comes  the  auditor  appointed 
by  the  court  to  examine,  adjust,  and  allow  the  account  of 
the  plaintiff  in  the  above  entitled  cause,  to  wit,  H.  T. 
Reid,  Esq.,  and  makes  report  that  he  finds  the  sum  of 
$1290  to  be  due  from  said  defendants  to  the  said  plain- 
tiff, which  report  is  accepted  by  the  court ;  whereupon 
it  is  ordered  by  the  court  that  the  plaintiff  recover  of 
the  defendants  the  sum  of  $1290,  together  with  costs  of 
suit,  &c. 

The  plaintiff  also  offered  in  evidence  the  execution 
issued  upon  the  judgment  in  favor  of  Johnston,  and  the 
return  thereon.     The  return  is  as  follows  : 

"  December  1,  1842.  Levied  the  within  execution  on 
the  half-breed  Sac  and  Fox  reservation  in  Lee  county,  L 
T. ,  commonly  called  the  half-breed  tract.  Advertised  the 
same  for  sale  December  1,  1842,  January  1,  1843,  sold 
the  above  described  tract  of  land,  bought  by  H.  T.  Reid, 
for  the  sum  of  twenty-eight  hundred  and  eighty-four 
dollars  66-100.  Seventeen  hundred  and  sixty-two  dollars 
66-100  to  be  credited  in  full  satisfaction  of  the  within 
execution.  Hawkins  Tayloe,  Sheriff ^ 

The  plaintiff  also  offered  in  evidence  the  execution  and 
return  thereon  in  the  case  of  Brigham  v.  The  Owners  of 
the  half-breed  lands,  by  which  also  it  appears  that,  on  the 
same  day,  the  said  sheriff  sold  the  said  reservation  or  tract 
of  land  to  the  said  Reid  for  the  same  sum. 


BURLINGTON,  MAY,  1849.  19 

Reed  v.  Wright. 

The  plaintiff  then  offered  in  evidence  a  sheriff's  deed 
executed  to  him  in  due  form  on  the  2d  day  of  January, 
1843,  in  pursuance  of  sales  made  under  said  executions, 
which  embraced  the  land  described  in  the  declaration. 
The  plaintiff  also  offered  to  prove  that  said  land  described 
in  the  declaration  was  within  the  half-breed  tract,  and 
part  and  parcel  of  the  same,  and  that  the  same  was  in- 
cluded in  the  sheriffs  deed,  and  in  the  said  act  of  Congress 
of  30th  of  June,  1834. 

To  the  introduction,  as  evidence,  to  the  jury,  of  the  said 
judgments,  executions,  returns  thereon  and  sheriff's  deed, 
the  defendant  objected,  and  the  court  sustained  the  objec- 
tion, and  refused  to  permit  said  evidence  to  go  to  the  jury; 
whereupon  the  plaintiff  excepted,  and  assigns  the  decision 
of  the  court  excludins;  said  evidence  as  error. 

The  statute  regulating  the  action  of  right,  provides  that 
the  plaintiff"  shall  only  recover  upon  the  strength  and 
validity  of  his  own  title.  Rev.  Stat.,  431,  §  45.  Having, 
in  order  to  a  proper  understanding  of  this  case,  and  the 
important  principles  involved  in  the  decision,  noticed  the 
evidence  offered  by  the  plaintiff  to  sustain  his  action,  the 
treaty,  act  of  Congress,  and  the  acts  of  the  Wisconsin  and 
Iowa  legislatures,  relied  upon  by  him,  we  will  examine  the 
questions  so  elaborately  and  ably  discussed  in  the  trial. 

By  the  counsel  for  the  defendant  in  error,  it  was  con- 
tended that  the  Wisconsin  and  Iowa  acts  were  unconsti- 
tutional, and  consequently  all  proceedings  under  them 
absolutely  void.  While,  upon  the  other  hand,  the  uncon- 
Btitutionality  of  the  acts  was  not  only  denied,  but  it  was 
claimed,  even  if  they  were  not  constitutional,  as  the  court 
rendering  the  judgments  possessed  general  jurisdiction,  it 
necessarily  decided  in  favor  of  its  jurisdiction,  and  if  that 
was  error,  the  party  could  have  been  relieved  in  an  appel- 
late court,  upon  writ  of  error ;  and  that  the  propriety  of 
the  judgments  could  not  be  collaterally  questioned. 

Although  many  points  have  been  made  in  this  case, 
those  which  we  deem  most  important  are  :  First,  Were  the 
acts  of  the  Wisconsin  and  Iowa  legislatures  within  the 


20  SUPREME  COURT  CASES, 

Eeed  v.  Wright. 

power  conferred  upon  them  by  Congress,  and  in  conformity 
with  the  ordinance  of  1787  ?  Second,  Did  the  district  court 
of  Lee  county  acquire  any  jurisdiction,  under  the  Iowa  act, 
to  render  the  judgments  which  it  did  render  ?  Third,  Can 
the  judgments  so  rendered  be  collaterally  impeached? 
And,  fourth,  Did  the  sale,  under  the  executions  issued 
on  said  judgments,  pass  any  title  to  the  plaintiff  in 
error  ? 

The  Wisconsin  act  is  based  solely  upon  the  assumption 
of  the  Wisconsin  legislature,  that  it  is  expedient,  in  order 
to  the  settlement  of  the  half-breed  tract,  &c.,  that  titles 
should  be  investigated  and  partition  and  sales  made,  and 
upon  this  assumption  commissioners  are  appointed  to 
examine  the  titles,  with  power  to  administer  oaths,  take 
affidavits,  issue  commissions  for  taking  depositions,  issue 
subpoenas  and  other  process  to  compel  the  attendance  of 
witnesses  ;  and  for  this  purpose  they  were  clothed  with  as 
full  and  ample  power  as  was  possessed  by  the  district 
court. 

The  act  of  the  Iowa  legislature,  although  it  repeals  the 
Wisconsin  act,  yet  it  provides  the  manner  in  which  the 
commissioners,  who  were  appointed  under  that  net,  shall 
proceed  to  collect  the  amount,  which  the  legislature  pre- 
supposes to  be  due  them,  for  services  rendered  in  ascer- 
taining the  titles  to  the  half-breed  lands,  and  therefore 
dependent  upon  the  rights  presumed  to  have  accrued 
under  the  latter  for  its  operation. 

While  it  is  the  duty  of  courts  of  justice  studiously  to 
ascertain  the  intention  of  the  legislature,  when  called  upon 
to  give  construction  and  judicial  sanction  to  their  enact- 
ments, and  as  courts  have,  and  will  with  great  reluctance 
pronounce  them  unconstitutional,  yet  the  books  afford 
abundant  instances  in  which  courts  have  been  constrained 
to  declare  the  most  solemn  legislative  acts  but  gross  viola- 
tions of  the  fundamental  law  of  the  land.  It  has  accord- 
ingly become  a  settled  principle  in  the  legal  polity  of  this 
country,  that  it  belongs  to  the  judicial  power,  as  a  matter 
of  right  and  duty,  to  declare  every  act  of  the  legislature 


BURLINGTON,  MAY,  1849.  21 


Eeed  v,  Wright. 


made  in  violation  of  the  constitution,  or  of  any  provision 
of  it,  null  and  void.     1  Kent  Com.,  450. 

Under  our  form  of  government  the  legislature  is  not 
supreme.  It  is  only  one  of  the  organs  of  that  absolute 
sovereignty  that  resides  in  the  whole  body  of  the  people. 
Like  other  departments  of  the  government,  it  can  only 
exercise  such  powers  as  have  been  delegated  to  it,  and 
when  it  steps  beyond  that  boundary,  its  acts,  like  those  of 
the  most  humble  magistrate  in  the  state  who  transcends 
his  jurisdiction,  are  utterly  void.  Taylor  v.  Porter,  4 
Hill,  140. 

In  this  country,  wi'itten  constitutions  form  the  basis  of 
the  general  and  state  governments.  From  them,  each 
branch  derives  its  power,  conferring  on  each  department 
certain  duties,  restricting  each  within  certain  prescribed 
and  limited  sphere  of  action ;  the  authority  thus  delegated 
cannot  be  passed  with  impunity. 

The  legislature,  as  an  important  integral  part  of  the  state 
organization,  derives  all  its  sovereignty  from  the  consti- 
tution which  created  it.  It  can  make  laws,  but  cannot 
subvert  the  constitution,  which  is  the  written  will  of  the 
people,  the  supreme  hiw  of  the  land,  and  all  legislation 
must  be  conformabl,e  with  its  provisions,  if  not,  the  act 
does  not  possess  the  least  virtue  or  validity  whatever.  But 
as  members  of  the  legislature,  in  the  discharge  of  their 
duties,  act  under  an  oath  to  support  the  constitution, 
nothing  will  be  presumed  in  favor  of  the  unconstitution- 
ality of  a  law.  The  violation  should  be  clear  and  apparent 
before  the  act  should  be  declared  void.  And  to  the  judi- 
cial department  of  the  government  is  entrusted  the  power 
to  decide  all  questions  of  constitutional  law. 

The  act  of  Congress  establishing  the  territorial  govern- 
ment of  Wisconsin,  provided  that  the  legislative  power  of 
the  territory  should  extend  to  all  rightful  subjects  of  legis- 
lation. 

The  act  also  provided  that  the  inhabitants  of  said  terri- 
tory should  be  entitled  to  and  enjoy  all  and  singular  the 
rights,  privileges  and  advantages  granted  and  secured  to 


22  SUPREME  COURT  CASES, 


Eeed  v,  Wright. 


the  people  of  tlie  territory  of  the  United  States,  north-west 
of  the  river  Ohio,  by  the  articles  of  compact  contained  in 
the  ordinance  of  the  government  of  said  territory,  passed 
on  the  13th  day  of  July,  1787,  and  should  be  subject  to 
all  the  conditions,  and  restrictions  and  prohibitions  in 
said  articles  of  compact,  imposed  upon  the  people  of  said 
territory.  By  that  solemn  instrument  it  is  ordained  and 
declared,  among  other  things,  that  for  extending  the  fun- 
damental principles  of  civil  and  religious  liberty  which 
form  the  basis,  wherever  these  republics,  their  laws  and 
constitutions,  are  established,  to  fix  and  establish  those 
principles  as  the  basis  of  all  laws,  constitutions  and 
governments  which  for  ever  shall  be  formed  in  said  terri- 
tory, the  inhabitants  of  said  territory  shall  always  be 
entitled  to  the  benefits  of  the  writ  of  habeas  corpu.^^  and 
of  a  trial  by  jury,  of  a  proportionate  representation  of  *he 
people  in  the  legislature,  and  of  judicial  proceedings  ac 
cording  to  the  course  of  the  common  law. 

All  the  legislation  of  the  territory  of  Wisconsin  should 
have  been  consistent  with  the  principles  engrafted  into 
this  charter  of  human  rights  and  civil  liberty.  The  legis- 
lature could  not  cm-tail  any  rights  conferred  upon  the 
people  by  the  ordinance,  nor  confer  any  rights  withheld. 

The  great  landmarks  of  national  liberty,  trial  by  jury, 
and  judicial  proceedings  according  to  the  course  of  the 
common  law,  so  wisely  secm-ed  to  the  inhabitants  of  the 
territory  by  the  ordinance,  were  insuperable  barriers  against 
legislative  encroachment.  With  the  same  propriety  might 
the  legislature  attempt  to  take  from  the  citizen  the  benefit 
of  the  writ  oi  habeas  corpus  as  to  forbid  the  right  of  trial 
by  jury,  and  as  well  deny  him  religious  freedom  as  to 
attempt  to  divest  him  of  his  property  without  judicial 
proceedings  according  to  the  course  of  the  common  law. 
Hence  all  legislation  in  derogation  of  these  rights  is  un 
constitutional  and  void.  But  the  ordinance  of  1787 
further  declares,  that  no  man  shall  be  deprived  of  his 
liberty  or  property  but  Dy  the  judgment  of  his  peers  or 
the  laws  of  the  land. 


BURLINGTON,  MAY,  1849.  23 

Keed  v.  Wright. 

Law,  Blackstone  defines  to  be  a  rule,  not  a  sudden  tran- 
sient order  fi'om  a  superior  to,  or  concerning  a  particular 
person,  but  something  permanent,  uniform  and  universal. 
Therefore  a  particular  act  of  the  legislature  to  confiscate 
the  goods  of  Titius,  or  attaint  him  of  high  treason,  does 
not  enter  into  the  idea  of  a  municipal  law,  for  the  opera- 
tion of  the  act  is  spent  upon  Titius  only,  and  has  no  rela- 
tion to  the  community  in  general.  It  is  rather  a  sentence 
than  a  law;  and  Lord  Coke,  in  commenting  upon  the  cele- 
brated 29th  chap,  of  Magna  Charta,  says  no  man  shall 
be  deprived,  &c.,  unless  it  be  by  the  lawful  judgment,  that 
is,  verdict  of  equals,  or  by  the  law  of  the  land,  (to  speak 
it  once  for  all,)  by  due  course  and  process  of  law.  The 
phrase,  law  of  the  land,  is  thus  defined  by  an  author: 
''  By  the  law  of  the  land  is  most  clearly  intended  the  gene- 
ral law,  a  law  which  hears  before  it  condemns,  which  pro- 
ceeds upon  inquiry,  and  renders  judgment  only  after  trial. 
The  meaning  is,  that  every  citizen  shall  hold  his  life, 
liberty,  jDroperty  and  immunities  under  the  protection  of 
general  rules  which  govern  society.  Everything  which  may 
pass,  under  the  form  of  an  enactment,  is  not  therefore  to 
be  considered  the  law  of  the  land.  If  this  were  the  case, 
acts. of  attainder,  bills  of  pains  and  penalties,  acts  of  con- 
fiscation, acts  reversing  judgments,  and  acts  directly 
transferring  one  man's  estate  to  another,  legislative  judg- 
ments, and  decrees  and  forfeitures  in  all  possible  forms, 
would  be  the  law  of  the  land.  Such  a  strange  construc- 
tion would  render  constitutional  provisions  of  the  highest 
importance  completely  inoperative  and  void.  The  admin- 
istration of  justice  would  be  an  empty  form — an  idle 
ceremony ;  and  judges  would  sit  to  execute  legislative 
iudgments  and  decrees,  not  to  declare  the  law,  or  admin- 
ister the  justice  of  the  country." 

In  the  case  of  Iloke  v.  Henderson,  4  Dev.,  15,  Chief 
Justice  Ruffin  also  says,  that  statutes  which  would  deprive 
a  citizen  of  the  rights  of  person  or  property,  without  a 
regular  trial  according  to  the  course  and  usage  of  the 
common  law,  would  not  be  the  law  of  the  land  in  the  sense 


24  SUPREME  COURT  CASES, 

Reed  v.  Wright. 

of  the  constitution.  Judge  Bronson,  in  the  case  of  Taylor 
V.  Porter^  4  Hill,  (in  speaking  on  this  subject,)  says  the 
meaning  of  the  section  there  seems  to  be,  that  no  member 
of  the  state  shall  be  disfranchised  or  deprived  of  any  of  his 
I'ights  or  privileges  unless  the  matter  shall  be  adjudged 
against  him  upon  trial  had  according  to  the  course  of  the 
common  law. 

Did  the  act  of  the  "Wisconsin  legislature  seek  to  deprive 
the  owners  of  the  half-breed  lands  of  their  property  by 
judicial  proceedings  according  to  the  course  of  the  com- 
mon law  ?  If  not,  the  act  was  in  conflict  with  the  supreme 
law  of  the  land,  and  could  not  have  been  enforced. 

The  act  apj)ointed  three  commissioners  to  examine  and 
report  to  the  district  court  of  Lee  county  upon  the  titles 
set  up  to  the  half-breed  lands.  All  persons  owning  any 
interest  in  said  lands  were  required  to  file  with  the  clerk 
of  the  district  court  a  written  notice  of  their  respective 
claims.  It  was  made  the  duty  of  the  commissioners  under 
the  act  to  take  and  receive  testimony  concerning  the  validity 
of  claims  thus  presented  and  filed,  and  report  to  the  com-t 
the  names  of  the  owners,  and  the  proportions  to  which 
each  was  entitled,  &c.  The  act  made  it  imperative  upon 
the  court  to  render  judgment  at  the  next  succeeding  term 
after  filing  the  report  in  favor  of  the  claimants,  for  the 
amounts  to  which  they  were  respectively  entitled,  according 
to  said  report,  unless  exceptions  were  filed  by  the  fourth 
day  of  said  term.  And  by  said  act,  all  persons  claiming 
any  interest  in  said  land,  under  the  treaty  and  act  of  Con- 
gress, who  did  not  file  their  claims  as  aforesaid,  were  for 
ever  barred  from  setting  up  any  right  in  said  lands,  or  the 
proceeds  of  the  sale  thereof.  The  act  also  appointed 
certain  commissioners,  authorizing  them,  or  a  majority,  to 
proceed  and  make  sale  of  said  lands,  from  time  to  time, 
according  to  the  judgment  or  order  of  the  court,  to  make 
surveys,  &c. ;  and  they  were  authorized,  upon  the  receipt 
of  the  consideration  of  the  sales,  and  ratification  of  the  re- 
port by  the  court,  to  execute  and  deliver  to  the  purchasers 
proper  deeds,  which  should  be  efi'ectual  to  vest  in  the  re- 


BURLINGTON,  MAY,  1849.  25 

Reed  v.  Wright. 

spective  purchasers  the  absolute  title  in  fee  simple  in 
severality  of  the  hinds  so  sold  and  conveyed  frcj  ;:nd  clear 
of  all  right  and  claim  of  all  persons  under  said  treaty 
and  act  of  Congress.  All  expense  of  the  proceedings  were 
required  to  be  paid  out  of  sales,  &c.  The  act  also  provided 
that  the  jurisdiction  of  the  said  court,  in  the  mntter 
referred  to  in  said  act,  should  be  exclusive,  and  that  no 
proceeding  should  be  instituted  or  sustained  in  that  or  any 
other  court,  either  at  law  or  equity,  under  the  general  lam 
relating  to  the  partition  of  lands,  for  the  purpose  of  ejf'ect- 
ing  the  partition  or  sale  of  said,  lands. 

We  have  no  hesitation  in  coming  to  the  conclusion,  that 
this  act,  under  which  Johnston  and  Brigham's  services  were 
rendered  in  ascertaining  and  reporting  upon  the  title  to 
the  half-breed  lands,  was  a  most  unwarrantable  assump- 
tion of  legislative  power.  It  proceeds  upon  the  hypothesis 
that  it  is  necessary  to  ascertain  and  settle  the  title  to  cer- 
tain lands.  For  this  purpose,  commissioners  are  appointed 
and  clothed  with  most  extraordinary  authority. 

The  judgment  of  the  court  upon  their  report  is  to  settle 
the  title  to  more  than  one  hundred  thousand  acres  of  valu- 
able land,  not  by  any  proceeding  according  to  the  course 
of  the  common  law,  not  by  service  of  process,  by  which 
the  parties  could  have  a  day  in  court,  not  by  a  general  law 
of  the  land,  operating  upon  the  whole  community  alike, 
but  by  a  special  and  limited  act,  violating  all  of  these 
valuable  safeguards. 

The  act  wrested  from  the  court  all  judicial  discretion, 
as  it  was  required  in  unqualified  terms  to  render  judgment 
in  favor  of  the  claimants,  for  the  amount  the  said  commis- 
sioners should  report  them  entitled  to. 

This  wonderful  legislation  does  not  stop  here;  but  if 
persons  who  held  good  and  valid  titles  to  said  lands  did 
not  file  their  claims  as  required  by  the  act,  they  were  for 
ever  barred  from  setting  up  any  right  in  said  lands,  or  the 
proceeds  of  the  sale  thereof. 

All  equitable  and  legal  proceedings  under  the  general 
law  of  partition  were  forbitlden.  Sale  commissioners  were 
Vol.  ir.  3 


26  SUPEEME  COURT  CASES, 

Reed  v.  Wright. 

appointed,  with  full  power  to  sell  said  lands,  and  in  this 
manner  was  title  to  be  divested  and  imparted. 

Thus,  A  owning  a  good  and  valid  title  in  said  lands, 
who  neither  consented  to  the  act  or  proceeding,  not  having 
incurred  any  legal  liability,  if  he  should  fail  to  file  his 
claim,  he  would  become  disseized  of  his  freehold,  deprived 
of  his  estate,  and  all  for  the  reason  that  he  did  not  file  his 
evidence  of  title.  There  was  no  public  necessity  for  such 
an  act.  The  general  partition  law  was  available  for  the 
purpose  of  ascertaining,  and  nettling  the  various  interests 
of  those  holding  titles  in  said  lands ;  and  if  such  a  pre- 
tence as  the  one  assumed  by  the  legislature  for  the  passage 
of  this  act  were  a  justification,  then,  indeed,  with  the  same 
propriety  might  they  pass  an  act  requu'ing  the  owners  of 
a  particular  block  of  lots,  the  title  to  which  might  be  in 
controversy,  to  file  their  respective  titles,  and  if  either  of 
them  failed  to  do  so,  the  penalty  should  be  a  forfeiture  of 
the  interest  owned. 

The  power  assumed  by  the  legislature  in  this  act,  if 
sustained  by  the  courts,  would  lead  to  the  most  fearful 
consequences,  as  it  would  enable  them  at  will,  by  special 
and  limited  laws,  to  settle  aP  controversies  of  title,  and  to 
bring  about  this  object  the  property  of  one  person  coulu  be 
taken  against  his  consent,  and  given  to  another.  In  the 
case  of  Wilkinson  v.  Lelancl,  2  Peters,  657,  Judge  Story 
says,  "  that  government  can  scarcely  be  deemed  to  be  free, 
where  the  rights  of  property  are  left  solely  dependent  upon 
the  will  of  a  legislative  body  without  any  restraint."  The 
fundamental  maxims  of  a  free  government  seem  to  require 
that  the  rights  of  personal  liberty  and  private  property 
should  be  held  sacred;  at  least  no  court  of  justice  in  this 
country  would  be  warranted  in  assuming  that  the  power  to 
violate  and  disregard  them — a  power  so  repugnant  to  the 
common  principles  of  justice  and  civil  liberty — lurked  under 
any  general  grant  of  legislative  authority,  or  ought  to  be 
implied  from  any  general  expressions  of  the  will  of  the 
people.  The  i)eople  ought  not  to  be  presumed  to  part  with 
ri2:hts  so  vital  to  their  security  and  well-being,  without  very 


BURLINGTON,  MAY,  1849. 


Reed  v.  Wriffht. 


stroni;-  and  direct  expression  of  such  intention.  The  power 
of  the  Wisconsin  legislature  was  derived  from  Congress, 
which  extended  to  all  rightful  subjects  of  legislation,  and 
subject  also  to  all  the  restrictions  and  provisions  of  the 
ordinance  of  1778.  The  organic  law  conferred  no  power 
on  the  legislature  to  pass  such  an  extraordinary  act.  In 
the  case  of  Taylor  v.  Porter,  4  H'\\  144,  Judge  Bronsou 
says,  "we  know  of  no  case  in  which  a  legislative  act  to 
transfer  the  property  of  A  to  B  without  his  consent,  has 
ever  been  held  a  constitutional  exercise  of  legislative  power 
in  any  state  in  this  Union.  On  the  contrary,  it  has  been 
constantly  resisted,  as  inconsistent  with  just  principles, 
by  every  tribunal  in  which  it  has  been  attemjjted  to  be 
enforced.  The  security  of  life,  liberty  and  property  lies  at 
the  foundation  of  the  social  compact,  and  to  say  that  this 
grant  of  legislative  power  includes  the  right  to  attack 
private  property,  is  equivalent  to  saying  that  the  people 
have  delegated  to  their  servants  the  power  of  defeating 
one  of  the  great  ends  for  which  the  government  was  estab- 
lished. Neither  life,  liberty,  nor  property,  except  when 
forfeited  by  crime,  or  when  the  latter  is  taken  for  public 
use,  falls  within  the  scope  of  legislative  power." 

Laws  affecting  life,  liberty  and  property  must  be  general 
in  their  application,  operating  upon  the  entire  community 
alike.  It  is  the  boast  and  pride  of  our  institutions  that 
we  have  no  favored  classes ;  no  person  so  high  that  he 
does  not  require  the  care  and  protection  of  the  law,  no 
person  so  low  as  not  to  be  entitled  to  them.  The  life, 
liberty  and  property  of  one  citizen  rest  upon  the  same 
legal  foundation  as  those  of  another,  and  if  these  are  taken 
from  him,  it  must  be  by  a  law  which  operates  upon  all 
alike.  If  it  were  otherwise,  all  would  be  at  the  mercy  of 
legislative  power,  and  the  dearest  rights  of  the  citizen 
would  not  be  worth  possessing. 

Whatever  might  have  been  the  exigencies  which  would 
seem  to  require  an  act  to  settle  the  different  conflicting 
titles  to  the  half-breed  lands,  still  the  legislature  had  no 
right,  under  the  organic  law  and  ordinance,  to  pass,  a 


28  SUPHEME  COURT  CASES, 

Reed  v.  Wright. 

special  and  limited  act  confined  to  a  particular  class  of 
individuals,  by  which  they  were  to  be  deprived  of  their 
property.  In  common  with  all  other  persons  of  the  terri- 
tory, the  owners  of  these  lands  could  only  be  divested  of 
them  by  judicial  proceedings  according  to  the  course  of 
the  common  law. 

It  was  under  this  act  that  Johnston  and  Brigham  per- 
formed their  services,  for  which  the  entire  tract  was  sold, 
and  at  said  sale  purchased  by  Heid,  the  plaintiff  in  error. 
As  in  our  view  the  act  was  utterly  repugnant  to  the  ordi- 
nance of  1787,  and  was  not  within  any  express  power 
conferred  upon  the  legislature  by  the  act  of  Congress,  it 
was  unconstitutional  and  void,  and  no  rights  could  possibly 
have  accrued  under  it. 

Iowa,  formerly  constituting  a  part  of  the  Wisconsin 
territory,  passed  into  a  separate  territorial  government  in 
1838,  and  the  laws  of  Wisconsin,  by  the  organic  law,  were 
extended  over  the  new  territory.  The  first  legislature,  by 
an  act  approved  Jiinuary  25,  1839,  repealed  the  Wisconsin 
act,  but  provided  that  the  several  commissioners  appointed 
by  said  act  to  take  testimony  might  immediately  commence 
actions  before  the  district  court  of  Lee  county,  for  their 
several  accounts  against  the  owners  of  the  said  half-breed 
lands,  by  giving  eight  weeks'  notice  in  the  "  Iowa  Terri- 
torial Gazette"  to  said  owners  of  such  suits.  The  judge 
of  said  court  was  required,  if  said  accounts  were  deemed 
correct,  to  order  judgment  for  the  amounts  and  costs  to  be 
entered  up  against  said  owners,  which  was  to  be  a  lien,  &c., 
upon  said  lands.  This  judgment  was  to  draw  interest  at 
the  rate  of  1£  per  cent. 

The  statute  also  provides  that  the  words,  "  owners  of  the 
half-breed  lands  lying  in  Lee  county,"  should  be  a  suffi- 
cient designation  and  specification  of  the  defendants  in 
said  suits.  The  trial  is  required  to  be  before  the  court,  and 
not  a  jury.  By  virtue  of  this  act,  Johnston  and  Brigham 
commenced  their  suits  against  the  owners,  &c.,  as  such,  and 
not  against  any  person  by  name.  There  does  not  appear 
to  have  been  any  appearance  in  com't  on  the  part  of  the 


BURLINGTON,  MAY,  1849.  29 

Reed  v.  Wright. 

owners,  when  tlie  judgments  before  mentioned  were  ren- 
dered, on  wliicli  tlie  said  executions  were  issued,  and  the 
entire  tract  sold  by  the  sheriff  to  the  plaintiif  in  error. 

Tlie  unconstitutionality  of  the  Iowa  act  cannot  well  be 
controverted.  It  is  not  only  nugatory  of  itself,  but  pro- 
vides for  the  collcvvtion  of  claims  which  accrued  under  an 
unconstitutional  law.  The  same  act  which  invokes  the  aid 
of  a  coiu't  to  render  judgmei:--s  in  favor  of  invalid  claims, 
denies  to  those  whom  it  constitutes  defendants,  the  right 
of  a  trial  by  jury.  Instead  of  leaving  the  plaintiffs  to  pur- 
sue the  remedy  prescribed  by  the  law  of  a  land,  the  legis- 
lature assumes  a  power  not  delegated  to  it  by  the  law  of 
Congress,  and  in  direct  conflict  with  the  provisions  of  the 
ordinance  of  1787,  and  in  violation  of  the  general  laws  of 
the  territory.  The  suits  are  not  brought  against  persons 
by  name,  but  against  them  as  owners  of  certain  property, 
and  on  notice  by  publication,  judgments  are  rendered  and 
lands  sold  to  a  large  amount. 

The  general  laws  of  the  territory  of  Iowa  authorized 
actions  of  debt  to  be  prosecuted  against  defendants  only 
in  their  proper  names,  and  by  personal  service  of  process, 
and  entitled  them  to  trial  by  jury.  The  act  of  the  Iowa 
legislature  adjudged  that  the  owners  of  the  half-breed  lands 
were  indebted  to  the  commissioners,  and  authorized  them 
to  sue  such  owners  in  the  manner  before  mentioned,  not 
by  personal  service,  but  by  publication  in  a  newspaper. 
The  court  is  to  ascertain  of  itself,  and  not  by  jmy,  the 
amount  of  the  indebtedness,  and  to  enter  judgment  for  the 
same,  which  judgment  is  to  be  a  lien  on  said  land,  and 
di'aw  12  per  cent,  interest,  when  the  general  laws  of  the 
territory  only  authorized  6  per  cent.  This  is  not  according 
to  the  law  of  the  land.  Such  legislation  is  inconsistent 
with  the  principles  of  free  government,  for  it  asserts  a 
I)Ower  on  the  part  of  the  legislatm-e  entirely  inconsistent 
with  the  liberty  of  the  citizen.  It  is  not  within  the  scope 
of  rightful  legislation,  for  it  does  not  profess  to  declare  a 
general  rule  of  action  for  the  citizen,  but  is  partial,  limited 
and  exclusive.     It  infringes  the  clause  of  the  ordinance  of 


30  SUPREME  COURT  CASES, 

Reed  v.  Wright. 

1 787,  which  guarantees  judicial  proceedings  according  to 
the  course  of  the  common  law,  and  violates  that  clause  of 
the  ordinance  which  declares  that  no  man  shall  be  deprived 
of  his  liberty  or  property  but  by  the  judgment  of  his  peers 
and  the  law  of  the  land;  and  consequently  it  is  utterly 
void.  It  could  not  confer  any  additional  authority  upon 
the  court,  it  could  take  no  power  from  it  which  it  other- 
wise possessed.  It  could  not  rightfully  create  any  new 
fjicilities  for  Johnston  and  Brigham  to  jDrosecute  their 
claims,  and  their  legal  remedy  was  the  same  as  if  the  act 
had  not  been  passed;  and  as  it  was  a  dead  letter  upon  the 
statute,  no  rights  or  immunities  could  accrue  under  it. 

It  is  necessary  to  determine,  then,  whether  the  court  had 
power  and  jurisdiction,  under  the  act  of  the  Iowa  legisla- 
ture, to  enter  the  judgments  which  it  did  enter.  It  is  not 
contended  that  the  general  laws  of  the  territory  gave  the 
jurisdiction,  or  that  it  was  conferred  by  anything  except 
the  said  special  act.  This  act  we  have  shown  to  be  uncon- 
stitutional and  void,  and  it  being  the  only  act  which 
attempts  to  confer  authority  upon  the  court  to  enter  the 
judgments,  it  is  necessary  to  inquire  whether  a  jurisdic- 
tion thus  conferred  can  be  exercised,  or  in  other  words, 
whether  an  unconstitutional  act  can  confer  jurisdiction  at 
all.  In  the  case  of  Malbury  v.  Madison,  1  Cond.,  267, 
Chief  Justice  Marshall  lays  down  the  doctrine  in  the  fol- 
lowing clear,  pointed  and  forcible  language  : 

"  The  question  whether  an  act  repugnant  to  the  consti- 
tution can  become  the  law  of  the  land,  is  a  question  deeply 
interesting  to  the  United  States,  but  happily  not  of  an  in- 
tricacy proportioned  to  its  interest.  It  seems  only  neces- 
sary to  recognize  certain  principles  supposed  to  have  been 
long  and  well  established  to  decide  it. 

''  That  the  people  have  an  original  right  to  establish  for 
their  future  government  such  principles  as  in  their  opinion 
shall  most  conduce  to  their  own  happiness,  is  the  basis  on 
which  the  whole  American  fabric  has  been  erected. 

"  The  exercise  of  this  original  right  is  a  very  great  exer- 
tion, nor  can  it,  nor  ought  it  to  be,  frequently  repeated. 


BURLINGTON,  MAY,  1849.  31 

Keed  V.  Wi-ig-ht. 

The  princii^les  therefore  so  established  are  deemed  funda- 
mental. And  as  the  authority  from  which  they  proceed 
is  su])reme,  and  can  seldom  act,  they  are  designed  to  be 
[jcrmanent. 

"  This  original  and  supreme  will  organizes  the  govern- 
ment, and  assigns  to  different  departments  their  respective 
powers.  It  may  either  stop  here,  or  establish  certain  limits 
not  to  be  transcended  by  these  departments. 

"  The  government  of  the  United  States  is  of  the  latter 
description.  The  powers  of  the  legislature  are  defined  and 
limited,  and  that  these  limits  may  not  be  mistaken  or  for- 
gotten, the  constitution  is  written.  To  what  purpose  are 
powers  limited,  and  to  what  purpose  is  that  limitation  com- 
mitted to  writing,  if  these  limits  may  at  any  time  be  passed 
by  those  intended  to  be  restrained?  The  distinction  be- 
tween a  government  with  limited  and  unlimited  powers  is 
abolished,  if  these  limits  do  not  confine  the  persons  on 
whom  they  are  imposed,  and  if  acts  prohibited  and  acts 
allowed  are  of  equal  obligation.  It  is  a  proposition  too 
plain  to  be  controverted,  that  the  constitution  controls  any 
legislative  act  repugnant  to  it,  or  that  the  legislature  may 
alter  the  constitution  by  an  ordinary  act. 

"  Between  these  alternatives  there  is  no  middle  ground. 
The  constitution  is  either  a  superior  permanent  law,  un- 
changeable by  ordinary  means,  or  it  is  on  a  level  with 
ordinary  legislative  acts,  and,  like  other  acts,  is  alterable 
when  the  legislature  shall  please  to  alter  it. 

"  If  the  former  part  of  the  alternative  be  true,  then  a 
legislative  act  contrary  to  the  constitution  is  not  law.  If 
the  latter  part  be  true,  then  written  constitutions  are  ab- 
surd attempts  on  the  part  of  the  people  to  limit  a  power 
in  its  own  nature  illimitable. 

"  Certainly  all  those  who  have  framed  written  constitu- 
tions, contemplate  them  as  forming  the  fundamental  and 
paramount  law  of  the  nation,  and  consequently  the  theory 
of  every  such  government  must  de,  that  an  act  of  the  legis- 
lature repugnant  to  the  constitution  is  void. 

"  This  theory  is  essentially  attached  to  a  written  consti- 


32  SUPREME  COURT  CASES, 

Keed  v.  Wright. 

tution,  and  is  consequently  to  be  considered  by  the  court 
as  one  of  the  fundamental  principles  of  society. 

"  If  an  act  of  the  legislature  repugnant  to  the  constitu- 
tion is  void,  does  it,  notwithstanding  its  invalidity,  bind 
the  courts  and  oblige  them  to  give  it  effect?  Or  in  other 
words,  though  it  be  not  law,  does  it  constitute  a  rule  as 
operative  as  if  it  was  law  ?  This  would  be  to  overthrow  in 
fact,  what  was  established  in  theory ;  and  would  seem  at 
first  view  an  absurdity  too  gross  to  be  insisted  on.  It  shall , 
however,  receive  a  more  attentive  consideration.  It  is 
emphatically  the  power  and  duty  of  the  judicial  depart- 
ment to  say  what  the  law  is.  Those  who  apply  the  rule 
to  particular  cases  must  of  necessity  expound  and  inter- 
pret that  rule.  If  two  laws  conj&ict  with  each  other,  the 
courts  must  decide  on  the  operation  of  each. 

''So  if  a  law  be  in  opposition  to  the  constitution.  If 
both  the  law  and  the  constitution  apply  to  a  particular 
case,  so  that  the  court  must  either  decide  the  case  conform- 
ably to  the  law,  disregarding  the  constitution,  or  conform- 
ably to  the  constitution,  disregarding  the  law,  the  court 
must  determine  which  of  these  conflicting  rules  govern  the 
case.     This  is  of  the  very  essence  of  judicial  duty. 

"  If  then  the  courts  are  to  regard  the  constitution,  and 
the  constitution  is  superior  to  any  ordinary  act  of  the  legis- 
latm-e,  the  constitution,  and  not  such  ordinary  act,  must 
govern  the  case  to  which  they  both  apply. 

"  Those  then  who  controvert  the  princiiDle  that  the  con- 
stitution is  to  be  considered  in  court  as  a  paramount  law, 
are  reduced  to  the  necessity  of  maintaining  that  courts 
must  close  their  eyes  on  the  constitution  and  see  only  the 
law.  This  doctrine  would  subvert  the  very  foundation  of 
all  written  constitutions.  It  would  declare  that  an  act 
which  according  to  the  principles  and  theory  of  our  govern- 
ment is  entirely  void,  is  yet  in  practice  completely  obliga- 
tory. It  would  declare  that  if  the  legislature  shall  do 
what  is  expressly  forbidden,  such  act,  notwithstanding  the 
express  prohibition,  is  in  reality  effectual.  It  would  be 
giving  to  the  legislature  a  practical  and  real  omnipotence, 


BURLINGTON,  MAY,  1849.  83 

Reed  v.  Wright. 

with  the  same  breath  which  professes  to  restrict  their 
powers  within  narrow  limits.  It  is  prescribing  limits  and 
diiclaring  that  these  limits  may  be  passed  at  pleasure. 

"  That  it  thus  reduces  to  nothing  what  we  have  deemed 
of  the  greatest  importance  in  political  institutions,  a 
written  constitution,  would  of  itself  be  sufficient  (in 
America,  where  written  constitutions  have  been  viewed 
with  so  much  reverence)  for  rejecting  the  constitution." 

But  it  was  contended  by  the  counsel  for  the  plaintiff  in 
error,  that  the  constitutional  question  cannot  now  be  raised. 
That  the  court  rendering  the  judgments,  necessarily  decided 
in  favor  of  the  constitutionality  of  the  act,  and  of  its  own 
jurisdiction,  and  that  decision  became  the  law  of  the  case, 
and  if  it  was  error  it  could  only  have  been  inquired  into  on 
writ  of  error.  From  an  examination  of  all  the  authorities 
referred  to,  we  are  satisfied  that  this  position  could  not  be 
successfully  controverted,  if  the  act  by  virtue  of  which  the 
court  rendered  judgments  were  not  void.  But  the  act 
being  in  direct  derogation  of  the  constitution,  did  not 
confer  any  power  upon  the  court  to  act  in  the  premises. 
Hence  all  of  its  proceedings  under  it  are  not  mere  errors 
or  irregularities,  but  absolutely  void.  There  is  a  plain 
distinction  in  all  books  upon  the  subject,  between  judg- 
ments void  and  only  voidable.  The  former  may  always 
be  questioned  when  attempted  to  be  enforced ;  the  latter 
never  after  the  limitation  of  the  time  prescribed  for  testing 
their  irregularities,  in  a  superior  or  appellate  court. 

The  leading  distinction  between  judgments  and  decrees 
void,  and  such  as  are  voidable  only,  is,  the  former  are 
binding  nowhere,  the  latter  anywhere  until  reversed  by 
a  superior  authority.  Hollingsworth  v.  Barhour  et  al., 
4  Peters,  466. 

A  party  is  not  obliged  to  sue  out  a  writ  of  error  to 
reverse  a  void  judgment.  He  may  wait  until  the  judg- 
ment is  attempted  to  be  enforced  on  proceedings  under 
it,  and  then  attack  it  collaterally.  But  with  erroneous 
judgments  it  is  different ;  if  he  sleeps  upon  his  rights,  his 
remedy  is  lost. 


34  SUPREME  COURT  CASES, 

Reed  v.  Wright. 

The  court  possessed  no  power  under  the  act  to  make  any 
decision  either  in  favor  of  its  jurisdiction  or  for  any  other 
purpose.  It  is  true,  it  was  a  court  of  general  jurisdic- 
tion, and  had  jurisdiction  over  the  action  of  debt,  as  was 
contended  in  the  argument.  But  the  proceedings  were 
conducted  exclusively  under  the  act,  and  instead  of  leaving 
the  court  to  exercise  its  general  jurisdiction,  it  was  required 
to  render  judgments  if  the  said  accounts  were  deemed  cor- 
rect. Its  entire  proceedings,  as  prescribed  by  the  act,  were 
essentially  different  from  ordinary  proceedings  in  actions 
of  debt.  The  action  of  the  court  is  based  exclusively  upon 
a  void  act,  which  is  made  a  part  of  the  record  in  this  case  ; 
and  as  the  com't  did  not  acquire  any  jurisdiction  over  the 
parties  under  the  act,  and  could  not  rightfully  enter  up 
any  judgment,  the  judgments  are  utterly  void. 

While,  therefore,  it  is  now  well  settled  that  judgments 
emanating  from  courts  of  general  jurisdiction  cannot  be 
impeached  collaterally  for  error  or  irregularities,  still 
judgments  absolutely  void  upon  their  face,  emanating  from 
the  same  courts,  may  be  so  impeached.  All  presumptions 
are  in  favor  of  the  former,  but  nothing  can  be  presumed 
in  favor  of  the  latter.  McComb  v.  Elliott,  8  S.  &  M.,  505  ; 
Enos  V.  Smith,  7  ib.,  85. 

The  case  of  Voorhees  v.  The  Bank  of  the  United  States, 
10  Peters,  449,  so  confidently  relied  upon  by  the  counsel 
for  the  plaintiff  in  error,  we  think,  when  properly  under- 
stood, sustains  this  position  and  enforces  this  distinction. 

While  Judge  Baldwin,  in  delivering  the  opinion  of  the 
court  in  that  case,  lays  down  the  doctrine  with  a  perspi- 
cuity and  power  seldom  surpassed  in  judicial  decisions, 
that  the  judgment  of  a  court  of  general  civil  jurisdiction 
cannot  be  impeached  collaterally  for  mere  errors  or  irregu- 
larities, he  also  says :  "  The  errors  of  the  court  do  not 
impair  their  validity :  binding  till  reversed,  any  objection 
to  their  full  effect  must  go  to  the  authority  under  which 
they  have  been  conducted.  If  not  warranted  by  the  con- 
stitution or  law  of  the  land,  our  most  solemn  proceedings 
can  confer  no  right  which  is  denied  to  any  judicial  act 


,  BURLINGTON,  MAY,  1849.  35 

Reed  v.  Wright. 

under  color  of  law,  which  can  properly  be  deemed  to  have 
been  done  coram  non  judice,  that  is,  by  persons  assuming 
the  judicial  functions  in  the  given  case,  without  lawful 
authority.  The  line  which  separates  error  in  judgment  from 
the  usurpation  of  power  is  ivery  definite,  and  is  precisely 
that  which  denotes  the  case  where  a  judgment  or  decree  is 
reversible  only  by  an  appellate  court,  or  may  be  declared 
a  nullity  collaterally  when  it  is  offered  in  evidence  in  an 
action  concerning  the  matter  adjudicated,  or  purporting  to 
have  been  so.  In  the  one  case  it  is  a  record  purporting 
absolute  verity,  in  the  other  mere  waste  paper." 

The  decision  of  the  court  in  the  above  case  sustained 
the  judgment  of  the  court  of  common  pleas  of  Hamilton 
county,  Ohio  ;  but  the  court  say,  in  speaking  of  the  objec- 
tion to  the  proceedings,  "  None  of  them  effect  the  jurisdic- 
tion of  the  court,  or  its  authority  to  order  or  confirm  the 
sale  ;  the  acts  omitted  to  be  recited  in  the  contract  are  not 
judicial  but  ministerial,  to  be  performed  by  the  clerks  or 
auditors." 

But  the  learned  judge  cites  the  decision  of  the  court  in 
Thompson  v.  Tolmie,  2  Pet.,  157,  in  which  the  court  declare 
"  that  the  general  and  well  settled  rule  of  law  in  such  cases 
is,  that  when  the  proceedings  are  collaterally  drawn  in 
question,  and  it  appears  in  the  face  of  them  that  the 
subject  matter  was  within  the  jurisdiction  of  the  court, 
they  are  voidable  only.  The  errors  and  irregularities,  if 
any  exist,  are  to  be  corrected  by  some  direct  proceeding, 
either  before  the  same  court  to  set  them  aside,  or  in  an 
appellate  court.  If  there  is  a  total  want  of  jurisdiction, 
the  proceedings  are  void  and  mere  nullities,  and  confer  no 
right,  and  afford  no  justification,  and  may  be  rejected  when 
collaterally  drawn  in  question." 

In  the  case  of  Rose  v.  Jlemely,  2  Cond.,  100,  in  which 
the  judgment  of  a  foreign  court  was  collaterally  attacked, 
Chief  Justice  Marshall,  in  delivering  the  opinion  of  the 
court,  says  :  "  The  power  of  the  court  then  is  of  necessity 
examinable  to  a  certain  extent  by  that  tribunal  which  is 
compelled  to  decide  whether  its  sentence  has  changed  the 


36  SUPREME  COURT  CASES, 

Keed  v.  Wright. 

right  of  property.  The  power  under  which  it  acts  must  be 
looked  into,  and  its  authority  to  decide  questions  which  it 
professes  to  decide  must  be  considered."  He  also  says, 
*'  Upon  principle  it  would  seem  that  the  operation  of 
every  judgment  must  depend  on  tho  power  of  the  court  to 
render  that  judgment,  or  in  other  words,  in  its  jurisdiction 
over  the  subject  matter  which  it  has  determined.  In  some 
cases  that  jurisdiction  depends  as  well  on  the  state  of  the 
thing,  as  on  the  constitution  -^f  the  court." 

In  the  case  of  Lessee  of  Hicke\j  et  al.  v.  Stewart  et  al., 
3  Howard,  750,  it  was  insisted  that  the  jurisdiction  of  the 
com-t  over  the  subject  matter  of  the  decree  could  not  be 
inquired  into  by  the  supreme  court,  nor  the  court  below, 
when  brought  before  either  collaterally.  The  decree  col- 
laterally assailed  was  rendered  by  the  supreme  court  of 
the  territory  of  Mississippi,  decreeing  certain  lands  to  the 
heirs  of  Robert  Starkie.  One  of  the  main  questions  before 
the  supreme  court  of  the  United  States  was,  whether  this 
decree  was  void,  the  court  having  no  jm-isdiction  of  the 
subject  matter  of  the  decree,  or  only  erroneous  and  void- 
able. The  court  say,  if  the  former,  then  its  validity  was 
inquirable  into  in  the  current  court  when  offered  in  evidence, 
and  it  ought  to  have  been  rejected.  The  court  decide  that 
the  court  rendering  the  decree  had  no  jurisdiction,  and 
that  the  whole  proceeding  was  a  nullity. 

When  a  court  has  jurisdiction,  it  has  a  right  to  decide 
every  question  which  occurs  in  the  cause,  and  whether  its 
decision  be  correct  or  otherwise,  its  judgment,  until  reversed, 
is  regarded  as  binding  in  every  other  court.  But  if  it  acts 
without  authority,  its  judgments  and  orders  are  regarded 
as  nullities  ;  they  are  not  voidable,  but  simply  void,  and 
form  no  bar  to  a  remedy  sought  even  prior  to  a  reversal 
in  opposition  to  them.  They  constitute  no  justification, 
and  all  persons  concerned  in  executing  such  judgments  or 
sentences  are  considered  in  law  trespassers.  This  distinc- 
tion runs  through  all  the  cases  on  the  subject,  and  it  proves 
that  the  jurisdiction  of  any  court  exercising  authority  over 
a  subject  may  be    inquired  into   in   every   court  where 


BURLINGTON,  MAY,  1849.  37 

Reed  v.  Wright. 

the  proceedings  of  the  former  are  relied  on  and  brouglit 
before  the  latter,  claiming  the  benefit  of  such  proceeding. 
Elliott  et  al.  v.  Fiersall  et  al.,  1  Peters,  340. 

In  the  case  of  Shriver's  Lessee  v.  Linn  et  al. ,  2  How. , 
43,  Judge  McLane,  in  delivering  the  opinion  of  the  court, 
says  :  "  No  court,  ho^yever  great  may  be  its  dignity,  can 
arrogate  to  itself  the  power  of  disposing  of  real  estate 
without  the  forms  of  law.  It  must  obtain  jurisdiction  of 
the  thing  in  a  legal  mode.  A  decree  without  notice  would 
be  treated  as  a  nullity;  and  so  must  a  sale  of  land  be 
treated  which  has  been  made  without  an  order  or  decree 
of  the  court,  though  it  may  have  ratified  the  sale." 

See  also  Mills  v.  Martin,  19  John,  7;  Skelton  v.  Tiffin 
et  al,  6  Howard,  163,  3  John,  457;  Proctor  v.  Newhall, 
17  Mass.,  81 ;  Bloom  v.  Burdick,  1  Hill,  130. 

In  the  last  case  the  court  declare  that  it  is  a  cardinal 
principle  in  the  administration  of  justice,  that  no  man  can 
be  condemned  or  divested  of  his  rights  until  he  has  had 
an  opportunity  of  being  heard.  He  must,  either  by  serv- 
ing process,  publication  notice,  appointing  a  guardian,  or 
some  other  way,  be  brought  into  court;  and  if  judgment  is 
rendered  against  him  before  that  is  done,  the  proceedings 
will  be  as  utterly  void  as  though  the  court  had  undertaken 
to  act  when  the  subject  matter  was  not  within  its  cogniz- 
ance, and  cites  Beman  v.  Fitch,  15  John,  121  ;  Bigelow  v. 
Stevens,  19  ih.,  39 ;  Mills  v.  Martin,  ib.,  7.  The  court  also 
say  the  distinction  bttween  superior  and  inferior  courts 
is  not  of  much  importance  in  this  particular  case,  for 
whenever  it  ajjpears  that  there  was  a  want  of  jurisdiction, 
the  judgment  will  be  void  in  whatever  court  it  was  ren- 
dered.    Hollingsworth  v.  Barbour,  4  Peters,  466. 

We  have  no  hesitation,  from  our  examination  of  the 
authorities  bearing  upon  this  important  branch  of  the  case, 
in  assuming  as  the  settled  doctrine  of  the  books,  that  judg- 
ments rendered  without  the  court  having  acquired  juris- 
diction either  over  the  subject  matter  or  the  parties,  are 
mere  nullities,  and  may  be  declared  void  by  a  competent 
tribunal  whenever  attempted  to  be  enforced. 


38  SUPREME  COURT  CASES, 

Keed  v.  Wright. 

In  tlie  case  before  us,  tlie  want  of  jurisdiction  over  the 
parties  api^ears  upon  the  face  of  tlie  proceedings.  Suit  is 
brought  and  judgments  entered  against  "  owners'*^  of  cer- 
tain lands. 

Parties  cannot  be  brought  into  court  in  this  manner,  and 
judgments  cannot  be  so  rendered.  These  judgments  are 
void,  as  the  court  acquired  no  jurisdiction.  Time  cannot 
sanctify  them,  nor  courts  enforce  them.  For  all  judicial 
purposes  thoy  are  as  though  they  had  not  been  rendered, 
and  although  the  statute  bars  a  writ  of  error,  they  neither 
bind  nor  conclude  any  one. 

But  it  is  said  that  Wright,  the  defendant  in  error,  can- 
not object  to  the  sale,  &c.,  he  being  only  in  possession 
without  pretence  of  title. 

The  statute  regulating  the  proceedings  in  actions  of 
right,  provides  that  the  plaintiff  shall  recover  upon  the 
strength  and  validity  of  his  own  title.  Hence  the  plain- 
tiff offered  the  treaty,  act  of  Congress,  legislative  acts, 
judgments,  executions  and  returns,  in  evidence.  This  was 
the  source  from  which  he  claimed  to  have  derived  title. 
If  the  sales  upon  the  execution  did  not  confer  title,  he 
could  not  recover,  even  against  a  stranger.  In  order  to 
entitle  Reid  to  recover  under  the  statute,  he  should  have  a 
valid  subsisting  interest  in  the  land.  As  the  judgments 
were  void,  no  interest  whatever  passed  in  consequence  of 
the  sales  under  the  executions,  and  therefore  the  plaintiff 
could  not  sustain  his  action  against  any  one,  and  the  court 
very  properly,  we  think,  refused  to  permit  the  evidence  to 
go  to  the  jury. 

Other  positions  were  taken  by  the  counsel  for  the  plain- 
tiff in  error,  besides  those  we  have  noticed.  The  argu- 
ments and  authorities  were  presented  to  the  consideration 
of  the  court  with  great  power  and  ability.  But  as  the 
case  has  presented  itself  to  our  minds,  we  have  not  thought 
it  necessary  to  notice  tliem  in  this  decision. 

We  have  been  fully  iui[)ressed  with  the  importance  of 
this  case  to  the  plaintiff  iu  error,  who  purchased  these 
lauds  under  a  judicial  sale,  and  fully  felt  all  that  reluctance 


BURLINGTON,  MAY,  1849.  39 

Hopping  V.  Burnam. 

which  should  ever  characterize  courts  when  they  declare 
legislative  acts  unconstitutional,  and  judgments  of  courts 
void.  Still  it  has  been  no  less  a  duty  to  decide  in  favor 
of  the  judgment  of  the  court  below. 

Judgment  aflfirmed. 

Henry  W.  Starr ^  C.  Walker  and  H.  T.  Reidy  for  plain- 
tiff in  error. 

Geo.  C.  Dixon,  for  the  defendant. 


HOPPING  V.  BURNAM. 

It  is  not  error  to  preclude  an  answer  to  irrelevant  or  immaterial  evidence. 

When  actual  notice  is  required  by  statute,  evidence  of  constructive  or  im- 
plied notice  is  not  sufficient. 

Actual  notice  can  only  be  communicated  by  express  information  to,  or  per- 
sonal service  upon,  the  party  interested. 

A  defective  description  of  land  in  a  levy  is  cured  by  a  correct  description  in 
the  sheriff's  deed,  when  it  shows  that  the  land  conveyed  is  the  same  ou 
which  the  levy  had  been  made. 

A  mere  omission  or  irregularity  in  a  sherifiF's  return  cannot  vitiate  a  sale 
made  under  execution,  so  as  to  invalidate  the  rights  of  a  bona  fide  pur- 
chaser. 

SheriflTs'  returns  of  levy,  &c.,  not  essential  to  title. 

Under  the  Michigan  statute  of  182?  -n  relation  to  conveyances,  an  nn- 
recorded  deed  cannot  prevail  against  a  subsequent  purchaser,  who  had  his 
deed  recorded  first. 

Under  the  registry  law  of  1840,  no  conveyance  is  valid  except  between 
parties  thereto  and  such  as  have  had  actual  knowledge  thereof,  until  it  is 
deposited  for  record. 

Deeds  executed  before  the  registry  act  •.•i*  1840,  should  be  recorded  under  it, 
the  same  as  deeds  executed  subsequent  to  the  passage  of  the  law. 

A  judgment  lien  will  hold  against  a  prior  unrecorded  deed,  without  actual 
notice. 

A  deed  for  land  first  filed  for  record,  though  subsequently  dated,  will  prevail. 

Error  to  Des  Moines  District  Court. 

Opinion  hy  Greene,  J.    An  action  of  right,  commenced 
January  16,  1846,  by  Joseph  S.  Burnam  against  Buckley 


40  SUPREME  COURT  CASES, 

Hopping  V.  Burnam. 

C.  Hopping.  The  suit  was  instituted  and  pleadings  filed 
under  statutory  provisions.  The  cause  was  finally  sub- 
mitted to  a  jury,  at  the  April  term  of  the  district  court  in 
1840,  and  a  verdict  returned  that  the  plaintiff  had  right 
to  the  immediate  possession  of  the  premises  described  in 
the  "v\Tit  and  declaration.  A  judgment  was  rendered 
accordingly. 

It  appears  of  record,  that  the  plaintiff  below  claimed 
title  under  a  sheriff's  deed,  dej' ved  from  a  judgment  ren- 
dered June  4,  1841,  in  favor  of  Daniel  Crenshaw  against 
Jeremiah  Smith.  Execution  issued  upon  this  judgment 
December  9,  1841.  The  land  in  question  was  levied  upon, 
and  on  the  29th  of  January,  1842,  it  was  sold  to  the  plaintiff. 
The  deed  was  executed  on  the  23d  of  January,  and  filed 
for  record  on  the  9th  of  March,  1842.  It  appears  that 
Smith,  the  defendant  in  execution,  had  purchased  the  land 
from  the  United  States  on  the  16th  of  January,  1840. 

Hopping,  the  defendant,  claimed  title  to  the  land  by 
virtue  of  a  deed  from  said  Smith,  dated  February  6,  1840; 
but  the  deed  was  not  filed  for  record  until  March  14, 
1842.  The  defendant  also  proved  that  he  had  been  in 
actual  possession  of  the  premises,  from  the  summer  of 
1839  until  the  spring  of  1846. 

It  will  be  observed  that  both  parties  claim  the  premises 
in  question,  under  Jeremiah  Smith,  by  whom  tiie  land  was 
entered ;  the  plaintiff  by  judicial,  and  the  defendant  by 
voluntary  sale.  The  principal  question  then  to  be  deter- 
mined is,  which  of  the  conveyances  under  the  foregoing 
facts  is  entitled  to  legal  priority  ?  But  as  other  questions 
were  raised  on  the  trial  below,  we  will  proceed  to  consider 
them  in  the  order  in  which  they  are  assigned  as  error. 

1.  Questions  were  propounded  to  a  witness  by  the  de- 
fendant, in  relation  to  the  time  he  had  been  in  possession, 
and  in  relation  to  the  sheriff's  knowledge  of  his  interest  in 
the  land.  These  questions  being  objected  to,  the  witness 
was  not  permitted  to  answer  them ;  and  the  court  decided 
that  the  mere  possession  of  the  jiremises  hy  the  defendant, 
or  his  acts  of  ownership  over  them,  were  not  sufficient  to 


BUllLINGTON,  MAY,  1849.  41 

Hopping  V.  Burnam. 

prove  actual  notice  to  the  plaintiff  of  the  defendant's  pur- 
chase and  deed  from  Smith.  Where  irrelevant  or  imma- 
terial evidence  would  be  elicited  by  a  question,  it  will 
hardly  be  contended  that  the  court  erred  in  precluding 
an  answer,  and  hence  the  objection  to  those  questions  was 
very  properly  entertained.  If  constructive  notice  of  the 
defendant's  deed  from  Smith  could  have  been  deemed  suf- 
ficient under  the  statute,  no  doubt  evidence  of  possession 
would  have  been  admissible  ;  for  possession  in  such  a  case 
and  acts  of  ownership  would  be  considered  sufficient  notice 
to  put  the  pm-chaser  upon  inquiry.  But  the  proof  required 
under  the  statute  was  of  actual  notice.  Constructive  or 
implied  notice  may  be  shown  by  a  record  authorized  by 
law,  by  possession,  by  acts  of  ownership,  and  by  other 
approj)riate  circumstances,  which  may  impart  notoriety 
of  interest  in  the  estate ;  but  actual  notice  can  only  be 
communicated  by  express  information  to,  or  personal  ser- 
vice upon,  the  party  interested  in  the  notice.  There  is  no 
ambiguity  in  the  language  of  the  act.  The  law  makers 
were  not  satisfied  Avith  the  term  "  notice  "  without  quali- 
fication, which  would  render  proof  of  notice  by  construction 
or  implication  admissible  ;  but  they  have  in  their  wisdom 
left  no  opening  for  such  proof;  as  they  have,  in  express 
terms  required  a  difierent  and  more  direct  kind  of  notice. 
Laws  of  1840,  p.  39,  §  31.  The  question  proposed  rela- 
tive to  the  sheriff's  knowledge  of  the  defendant's  interest 
in  the  land  was  also  irrelevant.  Even  if  established  that 
the  sheriff  had  notice  of  the  deed  from  Smith  to  Hopping, 
it  could  not  therefrom  be  deduced  as  a  legal  or  logical 
inference,  that  Burnam  had  actual  notice  of  such  deed. 
In  StaJde  v.  Sphon,  8  Serg.  &  R,  317,  it  was  decided  that 
notice  to  the  sheriff  at  a  sale  of  real  property  is  not  notice 
to  the  purchaser,  and  so  in  Stanley  v.  Perley,  5  Greenl., 
369.  The  propriety  of  these  decisions  has  not  been  ques- 
tioned. Under  this  view,  then,  and  under  the  conviction 
that  evidence  of  possession  is  alike  insufficient  and  inap- 
plicable to  establish  actual  notice  as  required  by  law,  we 
can  see  nothing  erroneous  in  tliis  ruling. 

Vol.  11.  4 


42  SUPREME  COURT  CASES, 

Hopping  V.  Burnam. 

2.  It  is  objected  that  the  execution  returns,  and  sheriff's 
deed,  were  improperly  admitted  in  evidence,  and  in  sup- 
port of  this  objection  it  is  urged  that  the  levy  and  return 
of  the  sheriff  are  defective,  and  the  land  insuflficiently 
described.  The  retm'ns  in  this  case  were  no  doubt  incom- 
plete, and  the  description  of  the  premises  levied  upon 
vague  and  uncertain.  It  sets  forth  the  land  as  "  a  part  of 
the  west  half  of  the  south-west  quarter  of  section  six,  in 
township  sixty-nine,  range  two  west,  in  Des  Moines  county, 
I.  T."  The  question  arises,  on  what  part' of  the  eighty 
acres  described  was  the  levy  made?  Such  vagueness  of 
description  would  have  been  adjudged  void  for  uncertainty, 
on  a  motion  made  at  the  proper  time  to  set  aside  the  levy 
and  return ;  and  if  the  deed  made  under  the  execution 
had  contained  the  same  defective  indefinite  description, 
it  could  have  conferred  no  title  upon  the  purchaser.  But 
the  deed  describes  the  land  levied  upon  and  sold,  with 
reliable  certainty^  and  thereby  cures  the  defective  return 
endorsed  upon  the  execution.  After  commencing  the 
premises  in  the  ordinary  form,  the  deed  proceeds  in  these 
words  :  "  I,  the  said  James  Cameron,  sheriff  as  aforesaid, 
levied  upon  the  following  described  tract  of  land,  to  wit : 
a  part  of  the  west  half  of  the  south-west  quarter  of  section 
six,  in  township  sixty-nine,  north  of  range  two  west,  in 
Des  Moines  county,  commencing  at  the  section  post  at  the 
south-west  corner  of  said  quarter  section,  running  thence 
north  with  the  township  line  thirteen  chains  and  forty-two 
links,  thence  east  thirteen  chains  and  forty-two  links, 
thence  south  thirteen  chains  and  forty-two  links  to  the 
section  line  dividing  sections  six  and  seven  in  said  town- 
ship, and  thence  west  with  said  section  line  thii'teen  chains 
and  forty- two  links  to  the  place  of  beginning ;  containing 
eighteen  acres,"  &c.  The  certainty  with  which  the  pre- 
mises are  described  in  the  deed,  and  the  averment  that 
they  were  levied  upon  under  the  appropriate  execution, 
show  that  the  property  sold  was  sufficiently  identified  at 
the  sheriff's  sale.  But  it  was  otherwise  in  Throckmorton 
V.  Moo7i,  10  Ohio,  4:2,  which  is  cited  in  support  of  the 


BURLINGTON,  MAY,  1849.  43 

Hopping  V.  Burnam. 

objection  at  bar.  In  that  case  the  levy  not  only  described 
the  premises  in  general  and  vague  terms,  but  the  sheriff's 
deed  contained  equally  indefinite  and  unreliable  descrip- 
tion. It  described  the  land  conveyed  as  1055  acres  in  a 
tract  of  1731  acres,  located  in  the  name  of  R.  T.  Neither 
the  sheriff's  return  nor  the  deed  designate  what  particular 
jiortion  of  the  1731  acres  were  levied  upon  and  sold.  It 
being  impossible  to  ascertain  either  from  the  levy  or  deed 
what  portion  of  the  entire  tract  so  vaguely  described  had 
been  conveyed,  the  deed  was  very  properly  declared  void 
for  uncertainty.  The  other  cases  cited  by  counsel  upon 
this  point,  we  consider  equally  inapplicable  to  the  present 

It  has  already  been  determined  by  this  court,  that  an 
omission  or  inequality  in  a  sheriff's  return,  cannot  vitiate 
a  sale  made  under  execution  so  as  to  invalidate  the  right 
of  a  bona  fide  jjurchaser.  Humphreys  v.  Berson,  1  G. 
Greene,  199,  215.  In  that  case  this  court  adopts  the 
doctrine  in  Doe  v.  Heath,  7  Black.,  156,  in  which  the 
retm-ns  of  the  sheriff'  did  not  show  who  was  the  purchaser 
at  the  sale.  The  court  in  their  opinion  say,  that  if  the 
party  "  relied  upon  the  execution  and  return  for  proof  that 
he  was  the  purchaser  of  the  land,  and  that  were  all  the 
proof  in  the  case  to  sustain  his  title,  it  would  be  insuffi- 
cient. The  sheriff's  returns  would  not  be  sufficient  to 
satisfy  the  statute  of  frauds.  But  a  deed  was  made  by  the 
sheriff  to  Whitcomb  as  the  purchaser  of  the  land,  and 
til  at  is  sufficient.  A  pm-chaser  at  sheriff's  sale,  who  pays 
Lis  money  and  receives  a  deed  from  the  sheriff  for  the  land 
levied  on  and  sold,  cannot  be  prejudiced  if  the  sheriff 
make  an  imperfect  return,  or  if  he  make  no  return  at 
all."  Guided  by  this  rule,  which  we  regard  as  salutary 
and  just,  it  will  be  conceded  that  the  objection  urged  in 
this  case  is  completely  removed.  True,  the  return  is  defec- 
tive ;  it  omits  a  full  description  of  the  property  levied  upon 
and  sold;  but  a  deed  "is  introduced  in  authentic  form, 
which  with  ample  detail  fills  the  hiatus  occasioned  by  the 
imperfect  return,  stamps  with  clearness  the  proceedings 


44  SUPREME  COURT  CASES, 

Hopping  V,  Burnam. 

■■ ■  ■"■  ■——-——-  ■ — '  '  ■         ■  ■ -—....  .J     — 

of  the  officer,  and  establishes  tlie  riglit  of  the  purchaser. 
Besides  it  is  a  settled  rule  that  the  returns  are  not  an 
essential  part  of  the  title  in  a  sheriff's  sale.  If  defectivelj 
made  or  not  made  at  all,  that  fact  will  not  impair  a  pur- 
chase which  would  be  otherwise  valid.  So  well  established 
is  this  principle,  so  uniformly  recognized  by  the  most 
profound  jurists,  that  a  review  of  it  at  this  day  might 
be  regarded  as  supererogatory.  The  supreme  court  of  the 
United  States,  in  the  case  of  Wheaton  v.  Sexton,  4  Wheat., 
503,  say  that  "  the  purchaser  depends  on  the  judgment, 
the  levy  and  the  deed.  All  other  questions  are  between 
the  parties  to  the  judgment  and  the  marshal.  Whether 
the  marshal  sells  before  or  after  the  return,  whether  he 
makes  a  correct  return  or  any  return  at  all  to  the  writ,  is 
immaterial  to  the  purchaser."  No  court  has  presumed 
to  question  the  correctness  of  this  decision.  The  highest 
tribunals  have  been  guided  by  it  in  acting  upon  all  sales 
made  by  judicial  process.  In  this  case  the  judgment  and 
deed  are  conceded  to  be  good,  but  it  is  claimed  that  the 
levy  was  defective,  and  therefore  the  purchaser  acquired 
no  title.  We  can  see  no  serious  defect  in  the  levy.  It 
cannot  properly  be  considered  defective,  from  the  fact 
that  imperfect  returns  were  made.  A  levy  precedes  the 
returns  and  is  independent  of  them.  It  consequently  may 
have  been  good  and  upon  specific  property,  even  if  incom- 
pletely, or  in  no  way  described  by  the  returns.  And  inde- 
pendeut  of  the  presumption  that  an  officer  has  done  his 
duty  until  the  contrary  is  shown,  we  learn  from  the  deed, 
as  before  stated,  that  a  levy  was  correctly  made.  When 
the  purchaser  at  a  sheriff's  sale  shows  an  authorized  execu- 
tion and  deed,  a  correct  levy  will  be  presumed.  It  was 
held  in  McEntire  v.  Durham,  7  Iredell,  151,  that  a  judg- 
ment, execution  and  deed  from  the  sheriff  are  sufficient  to 
support  the  title  of  a  purchaser,  without  proof  of  a  le^T". 
And  in  Evans  v.  Davis,  3  B.  Monroe,  344,  it  was  held 
that  if  property  is  sold  under  execution,  and  there  is  no 
return  that  it  was  levied  on,  the  law  i3resumes  a  levy. 
Under  these  decisions  the  objections  urged  to  the  levy, 


BURLINGTON,  MAY,  1849.  45 

Hopping  u.  Burnam. 

and  to  the  admission  of  the  execution  and  deed  as  evidence 
in  the  case,  must  be  regarded  as  groundless.  Even  if  it 
appeared  that  the  levy  was  as  defectively  made  as  is  con- 
tended, that  could  by  no  means  justify  the  exclusion  of 
the  execution  and  deed.  They  were  admissible  in  evidence, 
because  essential  links  in  a  chain  of  evidence  to  establish 
title.  If  not  sufficient,  they  were  at  least  conducive  proof 
relevant  to  the  issue,  and  therefore  admissible. 

3.  The  next  error  assigned  controverts  the  propriety  of 
certain  instructions  which  were  given  as  asked  by  the 
plaintiff.  The  only  points  involved  in  these  instructions 
about  which  there  can  be  the  slightest  doubt,  are  those 
designated  in  the  record  as  thii-d  and  fifth.  By  the  third, 
it  appears  that  the  court  charged  the  jury  that  the  deed 
offered  in  evidence  by  the  defendant  does  not  show  a  valid 
title  in  him  as  against  the  plaintiff,  unless  it  is  proven  to 
the  jury  that  the  plaintiff  had  actual  notice  of  the  exist- 
ence of  said  deed.  As  applicable  to  this  instruction,  we 
have  already  considered  what  constitutes  actual  notice ; 
and  as  the  other  principles  involved  in  this  instruction  are 
intimately  connected  with  the  fifth,  we  will  state  and 
examine  them  in  connection.  In  the  fifth  instruction, 
the  court  charged  "  that  the  conveyance  from  Smith  to 
Hopping  before  the  service  was  recorded,  only  had  the 
effect  to  pass  the  title  of  Smith  to  Hopping  as  between 
themselves  and  such  other  persons  as  had  actual  notice  of 
said  conveyance,  and  that  such  uced  could  not  affect  the 
rights  of  a  subsequent  purchaser  at  a  sheriff^s  sale  on  an 
execution  against  Smith,  without  actual  notice." 

It  will  be  seen  by  the  facts  which  we  have  stated,  that 
at  the  time  judgment  was  rendered  against  Smith,  Hop- 
ping was  in  possession  of  the  land  in  question,  and  had 
previously  obtained  a  deed  for  it  from  Smith,  but  had 
neglected  to  file  his  deed  for  record.  It  is  urged,  as  worthy 
of  consideration,  that  as  Smith  had  conveyed  the  land  to 
another,  and  as  a  consequence  had  no  interest  or  owner- 
ship in  it  at  the  time  judgment  was  rendered  against  him, 
such  judgment  could  not  operate  as  a  lien  upon  the  land. 


46  SUPREME  COURT  CASES, 


Hopping  V.  Burnr.m. 


No  one  can  think  of  controverting  this  position,  if  such 
grantee  had  acquired  complete  and  absolute  title  to  the 
premises.  A  conveyance  is  not  complete,  a  title  not  abso- 
lute, until  all  the  leading  requirements  of  the  law'  regu- 
lating conveyances  have  been  substantially  complied  with. 
If  there  had  been  no  registry  law  in  force  at  the  time  the 
deed  was  given  to  Hopping,  nor  when  the  judgment  was 
rendered  against  Smith,  then  the  unrecorded  deed  exe- 
cuted and  delivered  in  good  faith  anterior  to  the  judgment, 
would  have  been  evidence  of  title  in  Hopping  even  against 
the  creditors  of  Smith.  Had  this  been  the  case,  the  posi- 
tion assumed  by  counsel  for  him  as  plaintiff  in  error  could 
not  be  overcome.  But  unfortunately  for  his  title,  there 
was  a  registry  act  in  force,  not  only  when  the  deed  was 
given,  but  also  at  the  date  of  the  judgment.  At  the  date 
of  the  deed,  February  6,  1840,  a  statute  of  Michigan, 
entitled,  "  An  act  concerning  deeds  and  conveyances, 
approved  April  12,  1827,"  was  in  force.  Michigan  laws 
of  1833,  p.  280 ;  also  republished  in  ajDpendix  to  Wisconsin 
laws  of  1836,  p.  42.  The  first  section  of  this  act,  in  defin- 
ing what  shall  constitute  a  good  and  sufficient  deed  to  pass 
land,  provides  that  it  shall  be  signed  and  sealed  by  the 
parties  granting  the  same,  signed  by  two  or  more  wit- 
nesses, acknowledged  or  proved,  and  recorded  as  in  the 
act  provided.  The  second  section,  after  specifying  the 
manner  in  which  deeds  shall  be  acknowledged  or  proved, 
requires  that  "  such  deed  or  conveyance  shall  be  recorded 
in  the  office  of  register  of  probate  for  the  county,  or  register 
for  the  city,  where  such  lands,  tenements,  or  hereditaments 
respectively  are  situated,  lying,  and  being ;  and  every  such 
deed  or  conveyance  that  shall,  at  any  time  after  the  publi- 
cation thereof,  be  made  and  executed,  and  which  shall 
not  be  acknowledged,  proved,  and  recorded  as  aforesaid, 
shall  be  adjudged  fraudulent  and  void  against  any  s'ubse- 
quent  purchaser  or  mortgagee,  for  valuable  consideration, 
unless  such  deed  or  conveyance  be  recorded  as  aforesaid, 
before  the  recording  of  the  deed  or  conveyance  under  which 
such  subsequent  purchaser  or  mortgagee  may  claim."    The 


BURLINGTON,  MAY,  1849.  47 

Hopping  V.  Burnam. 

stringent  and  imperative  character  of  this  statute  needs 
no  comment.  It  extends  no  relief,  contains  no  saving 
clause  in  favor  of  an  unrecorded  deed,  when  brought  in 
conflict  with  the  rights  of  a  subsequent  purchaser,  who 
has  complied  with  the  beneficial  requu-ements  of  the 
registry  law.  Such  unrecorded  deed  is  to  be  uncondi- 
tionally adjudged  void  against  such  subsequent  purchaser, 
and  cannot  be  aided  by  showing  even  actual  notice.  It 
must  be  obvious,  then,  that  Hopping  acquired  no  right, 
by  his  imperfect  conveyance,  against  subsequent  purchasers 
under  the  law  of  Michigan.  This  law  continued  operative 
until  the  first  day  of  June,  1840,  when  an  act  of  the  Iowa 
legislature  took  effect.  This  was  entitled,  "  An  act  to 
regulate  conveyances,"  and  was  approved  January  4, 1840. 
It  does  not  in  express  terms  repeal  the  Michigan  law  of 
1827,  but  it  displaces  that  law  by  its  new  regulations  and 
provisions  in  relation  to  the  same  subjects — that  is,  the 
old  law  was  suspended  by  the  existence  and  effect  of  the 
new ;  but  if  any  portion  of  it  continued  operative,  it  was 
soon  after  repealed  by  a  general  repealing  statute.  Laws 
of  Extra  Session  of  1840,  p.  20,  §  1.  The  question  may 
here  be  presented,  Did  Hopping,  by  virtue  of  his  unre- 
corded deed,  acquire  any  additional  right  under  this  change 
in  the  law?  The  29tli  section  of  the  new  act  (Laws  of 
1840,  p.  39)  requires  every  instrument  in  writing,  convey- 
ing or  in  any  way  affecting  real  estate,  when  proved  or 
acknowledged,  and  certified  as  required  by  the  statute, 
to  be  recorded  in  the  ofiice  of  the  recorder  of  the  county 
in  which  such  real  estate  is  situated.  The  next  section 
provides,  that  from  the  time  of  filing  such  instrument  for 
record,  it  shall  be  notice  to  all  persons  ;  and  §  31  declares, 
that  "  no  such  instrument  in  writing  shall  be  valid  except 
between  the  parties  thereto,  and  such  as  have  actual  notice 
thereof,  until  the  same  shall  be  deposited  with  the  recorder 
for  record."  As  Hopping  neglected  to  comply  with  the 
regulations  of  this  law  until  after  the  judgment  was  ren- 
dered against  Smith,  and  after  Burnam's  title  was  in  all 
respects  perfected  by  having  his  deed  from  the  sheriff 


48  SUPREME  COURT  CASES, 

Hopping  V.  Burnam. 

duly  filed  for  record,  we  can  deduce  no  other  conclusion 
from  the  premises  than  that  HopjDing's  deed  from  Smith 
is  invalid  as  to  Burnam,  and  can  in  no  way  impeach  his 
title.  It  is  true  that  this  deed  possesses  ample  validity 
between  the  immediate  parties  to  it,  without  a  compliance 
with  these  recording  acts.  These  laws  were  not  intended 
to  affect  the  immediate  parties  to  conveyances,  but  they 
were  designed  as  a  protection  and  shield  to  third  persons, 
as  an  effectual  barrier  against  fraud  and  imposition  upon 
the  rights  of  creditors,  and  innocent  subsequent  purchasers. 
And  as  such  laws  are  found  to  be  vastly  conducive  to  this 
noble  object,  they  are  regarded  with  peculiar  favor  by 
courts  of  justice.  They  cannot  be  considered  as  oppres- 
sive or  onerous.  Their  regulations  are  easily  understood, 
they  may  be  readily  followed,  and  afford  ample  protection 
to  all  parties  concerned.  Men  buying  real  estate  in  good 
ftiith,  and  for  a  valuable  consideration,  generally  have 
the  precaution  to  comply  with  the  regulations  of  a  law 
so  beneficial  in  its  effects,  and  so  essential  in  securing 
title.  If  this  prudential  regulation  is  neglected,  the  de- 
linquent pm'chaser  has  no  one  to  blame  but  himself  The 
presumption  of  fraud  is  created  against  the  validity  of  his 
purchase  by  his  own  laches,  and  he  must  abide  the  legal 
consequences. 

Had  the  purchase  been  made  and  the  deed  delivered 
prior  to  the  judgment  against  Smith,  Hopjiing  would  have 
been  secure  by  filing  his  deed  for  record  previous  to  the 
rendition  of  the  judgment.  But  as  this  essential  attribute 
to  title  was  omitted.  Smith's  right  to  the  land,  so  far  as  it 
concerned  his  creditors  or  subsequent  purchasers,  Avas  not 
alienated,  but  still  remained  in  him  for  their  benefit,  as 
absolutely  as  if  no  transfer  had  been  made,  and  hence  his 
right  was  the  proper  subject  of  the  lien  created  by  the 
judgment.  See  act  to  ])revent  frauds,  approved  January 
19,  1840,  Rev.  Stat.,  271,  §  4. 

Another  position  assumed  by  counsel  with  apparent 
confidence  is,  that  the  instructions  of  the  court  below  were 
erroneous,  because,  as  they  allege,  the  deed  to  Hopping 


BURLINGTON,  MAY,  1849.  49 

Hopping  V.  Burnam. 

was  not  subject  to  any  recording  act.  In  supi3ort  of  this 
point,  it  is  contended  that  as  the  Iowa  recording  act  of 
1840  took  effect  after  the  deed  was  given,  and  as  no  law 
should  have  a  retrospective  operation,  it  should  not  affect 
Hopping's  previously  acquired  title.  We  fully  agree  with 
counsel  that  a  statute  cannot  operate  retrospectively  so  as 
to  impair  rights  previously  acquired.  But  we  are  unable 
to  see  the  particular  application  of  this  principle  to  the 
present  inquiry.  In  sustaining  the  action  of  the  court 
below,  no  retrospective  construction  of  the  statute  is  neces- 
sary, nor  are  vested  rights  in  any  way  disturbed.  We  have 
already  shown  that  Hopping  acquired  no  right  against  the 
creditors  of  Smith  nor  against  subsequent  purchasers,  pre- 
vious to  the  law  in  question,  and  consequently  he  had  no 
right  which  could  be  impaired  by  its  provisions  ;  neither 
did  he  acquire  any  right  under  this  law,  because  he  did 
not  avail  himself  of  its  regulations.  He  was  by  no  means 
exempt  from  its  recording  requirements  merely  because 
his  deed  was  executed  before  the  law  took  effect.  Its  pro- 
visions were  not  limited  to  deeds  subsequently  executed, 
but  they  extended  equally  to  deeds  then  in  esse,  to  those 
previously  executed  and  acknowledged  but  not  recorded. 
And  still  the  law  did  not  retroact,  it  did  not  require  deeds 
to  have  been  recorded  before  it  took  effect,  but  it  assumed 
a  regulation  over  them  from  and  after  that  event.  It 
operated  in  the  same  way  upon  prior  deeds,  as  did  the  6th 
section  of  the  act  to  prevent  frauds  operate  upon  judgments 
previously  rendered,  and  must  be  governed  by  the  same 
rule  of  construction -recognized  by  this  court  in  Woods  v. 
Mains,  1  G.  Greene,  275.  We  can  discover  nothing  in 
Norris  v.  Slaughter,  1  G.  Greene,  338,  which  militates  even 
remotely  against  our  conclusion  upon  this  point. 

Hopping's  common  law  rights  under  the  deed  are 
adverted  to,  but  as  the  deed  has  never  been  without 
statutory  control,  never  for  a  moment  released  from  the . 
requirements  of  a  recording  act,  it  is  useless  for  us  to 
consider  what  rights  he  might  have  acquired  under  a  law 
which  has  had  no  bearing  upon  the  case. 


60  SUPREME  COURT  CASES, 


Hopping  V.  Burnam. 


Thus  viewing  the  principal  objections  urged  to  the 
instruction  of  the  court  below,  and  the  uncontroverted 
principles  of  law  applicable  to  those  instructions,  we  are 
led  to  the  conclusion  that  they  were  properly  given. 

From  the  foregoing  remarks  it  will  be  understood  that 
this  court  still  adheres  to  the  principle  decided  in  Brown 
V.  Tuthill,  1  G.  Greene,  189,  that  a  judgment  lien  will 
hold  against  a  prior  unrecorded  deed,  without  actual  notice. 
We  have  carefully  examined  the  arguments  and  authori- 
ties brought  to  bear  adversely  upon  this  decision,  and  we 
are  unable  to  see  any  substantial  reason  for  doubting  its 
propriety  or  correctness.  Indeed,  we  cannot  see  a  reason- 
able or  plausible  ground  for  any  other  conclusion,  unless 
legislative  enactments  upon  the  subject,  and  the  right 
of  parties  under  existing  laws,  should  be  entirely  dis- 
regarded. In  no  other  way  can  the  intention  and  spirit 
of  those  statutes  be  maintained.  Clearly  common  law 
decisions,  or  those  made  upon  statutes  materially  different, 
cannot  be  applicable  to  the  laws  of  Iowa.  We  believe  in 
every  state  w^here  laws  like  ours  are  in  force,  like  decisions 
have  been  made. 

In  Parker  v.  Miller,  9  Ohio,  108,  the  title  acquired  by 
the  purchaser  under  the  attachment  law  of  that  state,  was 
adjudged  preferable  to  the  title  of  an  alienee  of  the  judg- 
ment debtor  by  deed  executed  before,  but  not  recorded  till 
after  the  lien  was  created  by  the  service  of  the  writ.  As 
the  deed  in  this  case  was  not  recorded  as  required  by  the 
law  of  that  state,  it  was  determined  that  the  rights  of  the 
first  grantee,  not  having  been  legally  perfected,  should 
yield  to  those  of  the  second. 

In  Pennsylvania  it  has  been  held  that  a  purchaser  of 
lands  at  a  sheriff's  sale  is  protected  from  all  instruments 
not  recorded  and  of  which  he  had  no  notice.  Irvine  v. 
Campbell,  6  Binn.,  118. 

In  Virginia  it  has  been  decided  that  when  a  deed  of  land 
is  made  by  a  debtor,  before  judgment  is  recovered  against 
him,  but  not  recorded  until  afterwards,  the  judgment  is  a 
lien  on  the  land.     McClure  v.  Thistle,  2  Gratt.,  182. 


BURLINGTON,  MAY,  1849.  61 

Hopping  V.  Burnam. 

And  SO  in  Missouri,  a  judgment  lien  will  hold  against  a 
prior  unrecorded  deed,  Reed  y.  Austin,  9  Mis.,  722.  A 
like  decision  was  j)reviously  made  by  the  same  court  in 
the  case  of  Waldo  v.  Russell,  5  Mis.,  377  ;  also  in  Hilly. 
Paul,  8  ih.,  479.  In  the  case  last  cited,  a  mortgage  was 
given  about  one  month  before  judgment  was  rendered 
against  the  mortgagee,  but  was  not  filed  for  record  till 
over  two  months  after.  The  sale  under  the  judgment  and 
the  recording  of  the  sheriff's  deed  took  place  at  a  still  later 
period,  and  the  purchaser  was  duly  notified  at  the  sale 
that  there  was  a  mortgage  on  the  land,  and  still  it  was 
held  that  the  judgment  lien  and  sale  under  it  were  good 
against  the  mortgage.  These  cases  are  decided  upon 
statutory  regulations,  which  are  in  all  particulars  analo- 
gous to  those  of  Iowa. 

The  same  doctrine  also  obtains  in  Kentucky  under  a 
statute  which  declares  such  deeds  void  as  to  creditors  and 
purchasers  without  notice.  Graham  v.  Samuels ^  1  Dana, 
166;  Helm  v.  Logan,  4  Bibb,  78. 

We  find  in  Massachusetts  the  same  principle  recognized. 
It  was  held  in  Coffins.  Ray,  1  Met.,  212,  that  the  creditors 
of  a  second  grantee,  who  had  proceeded  by  attachment 
against  his  land,  would  hold  against  the  second  grantee 
without  actual  notice  of  his  prior  unregistered  deed,  per- 
sonally given  before  the  attachment  levj^ 

The  same  may  be  said  of  Illinois,  Martin  v.  Dry  den,  1 
Gilman,  187.  So  in  North  Carolina,  Davidson  v.  Cowen, 
1  B.  and  Dev.  Eq.  Cas.,  470. 

In  Tennessee,  a  deed  not  duly  registered  is  void  as  to 
the  creditors  of  the  grantee,  either  with  or  without  notice. 
Washington  v.  Tronsdale,  Mart.  &  Yerg.,  385. 

We  find  in  other  states  decisions  to  the  same  effect. 
But  in  New  York  a  prior  unrecorded  mortgage  was  pre- 
ferred to  a  subsequent  judgment.  Jackson  v.  Dubois, 
4  John.,  216.  And  this  doctrine  is  mainly  sustained  by 
subsequent  decisions.  Jackson  v.  Terry,  13  John.,  471 ; 
Jackson  V.  Town,  4  Cowen,  606;  Jackson  y.  Post,  9  ib., 
120.     In  the  first  of  these  New  York  cases  it  is  conceded 


52  SUPREME  COURT  CASES, 

Hopping  V.  Burnam. 

by  the  opinion  of  the  court,  that  if  the  jiiirchaser  had 
perfected  his  title  under  the  judgment  before  the  registry 
of  the  mortgage,  he  must  have  recovered.  In  Jackson  v. 
Terry ^  the  subsequent  purchaser  from  the  judgment  debtor 
prevailed  against  the  judgment  purchaser,  because  his 
deed  from  the  sheriff  had  not  been  recorded.  The  case  of 
Jackson  V.  Toron  turned  chiefly  upon  the  want  of  title  in 
the  judgment  debtor.  And  in  Jackson  v.  Post^  the  pur- 
chaser under  the  judgment,  appears  to  have  had  notice  of 
the  prior  deed.  These  decisions  are  explained  and  quali- 
fied in  Jackson  v.  ChcLmberlain,  8  Wendell,  621,  and  in 
Jackson  V.  Post,  15  ib.,  588.  The  registry  act  of  New 
York,  under  which  these  decisions  were  made,  is  like  the 
English  statutes  and  applies  to  a  subsequent  bona  fide 
purchaser  without  notice.  This,  it  is  considered,  does  not 
extend  to  a  judgment  creditor.  But  the  statute  of  Iowa  in 
force  at  the  time  judgment  was  rendered  against  Smith,  is 
much  more  comjirehensive.  In  unrestrained  language,  it 
declares  that  no  unregistered  deed  shall  be  valid  except 
between  the  parties  and  such  as  have  actual  notice.  This 
as  clearly  comprises  creditors  without  notice,  as  it  does 
purchasers.  Beyond  the  two  exceptions,  it  is  unqualified 
in  its  extent  and  application.  Giving  to  our  statute,  then, 
the  construction  and  effect  evident!}'  intended  by  the  legis- 
lature, and  directed  by  the  enlightened  adjudications  of 
other  courts  upon  similar  statutes,  we  are  united  and  clear 
in  the  opinion  that  the  judgment  against  Smith,  having 
been  rendered  without  actual  notice  upon  his  creditor, 
became  an  effectual  lien  upon  the  land  in  question,  and 
that  it  can  in  no  way  be  impaired  by  the  unregistered  deed 
to  Hopping. 

A  judgment  lien,  it  is  true,  does  not  of  itself  establish  a 
right  to  the  land  on  which  it  attaches,  -but  it  does  confer  a 
priority  interest,  a  right  to  levy  on  the  same  to  the  exclu- 
sion of  subsequent  and  adverse  claims,  and  when  the  lien 
is  enforced  by  the  judicial  sale,  the  title  of  the  creditor 
and  of  those  claiming  under  him  relates  back  to  the  date 
of  the  judgment,  and  prevails  to  the  exclusion  of  all  inter- 


BURLINGTOX,  MAY,  1849.  6? 

Hopping  V.  Burnam. 

mediate  incumbrances.  Rankin  v.  Scott ^  12  Wheat,  177  ; 
ConardN.  Atlantic  In.  Co.,  1  Peters,  442;  Massingell  v. 
Downs,  7  Howard  U.  S.,  767. 

Under  this  view  of  a  judgment  lien,  it  will  be  observed 
that  Burnam's  title,  acquired  under  the  judgment  by  virtue 
of  the  levy  and  sheriff's  deed,  must  commence  from  the 
date  of  the  judgment,  and  from  that  time  be  preferred  to 
all  subsequently  acquired  or  registered  rights.  If  then 
Burnam's  title  rested  upon  the  priority  of  the  judgment 
lien  alone,  without  reference  to  the  fact  that  his  deed  was 
first  recorded,  it  would  prevail  over  Hopping's  unregistered 
deed.  Burnam's  priority  of  title  appears  to  be  based  upon 
a  double  security.  The  preference  to  his  title  is  not  only 
secured  by  the  judgment  lien,  but  also  by  his  prior  re- 
corded deed,  which  was  filed  for  record  five  days  before 
Hopping's.  That  the  deed  for  land,  first  filed  for  record 
though  subsequently  dated,  will  have  the  preference,  can 
not  be  controverted.  Upon  this  point  see,  in  addition  to 
the  authorities  cited,  Thompson  v.  Bullock,  1  Bay,  364 ; 
Curtis  V.  Deering,  3  Fair.,  499 ;  Trull  v.  Bigelow,  16  Mass., 
406;  Whittemore  v.  Bean,  6  N.  Ham.,  47;  Light ner  v. 
Money,  10  Watts,  407  ;  Jackson  v.  Walsh,  14  John.,  407. 

In  thus  deciding  this  case,  we  have  carefully  examined 
the  authorities  adduced  and  the  arguments  adi'oitly  applied 
by  counsel  for  the  plaintiff  in  error,  and  still  we  are  un- 
able to  arrive  at  any  other  conclusion.  The  case  of  Jack- 
son V.  Chamberlain,  15  Wend.,  620,  upon  which  particular 
reliance  appears  to  have  been  placed,  is  not  we  think  de- 
parted from  by  our  views  in  this  case.  The  facts  in  the 
two  cases  are  by  no  means  analogous.  In  that  case  the 
unrecorded  deed  was  executed  in  1793,  at  which  time 
there  was  no  law  in  force  requiring  a  deed  to  be  recorded 
in  order  to  give  it  validity,  consequently  the  conveyance 
to  the  grantee  was  perfect  on  the  delivery  of  the  deed. 
As  there  was  no  want  of  validity  in  the  transfer,  the 
grantor's  right  to  the  property  was  completely  divested, 
and  of  course  a  subsequent  judgment  against  him  could 
not  create  a  lien  upon  the  property.     The  opinion  of  the 


54  SUPREME  COUBT  CASES, 

Hopping  V.  Burnam. 

court  shows  conclusively  that  if  there  had  been  a  registry 
act  in  force,  as  in  the  case  at  bar,  a  different  decision 
would  have  been  made.  On  page  624,  the  court  say,  in  re- 
lation to  the  grantor  of  the  land,  that  "  even  if  the  title 
had  passed  from  him  in  a  manner  conclusive  against  him 
as  in  favor  of  his  grantee,  as  by  an  unrecorded  deed  where 
the  statutes  require  a  record  to  conclude  subsequent  in- 
cumbrances on  honajide  purchasers,  still  if  such  record  be 
necessary  as  against  such  purchasers  and  incumbrancers,  an 
unrecorded  deed  is  unavailing  against  them ;  so  in  this 
case,  had  it  been  necessary  by  statute  in  1793,  that  every 
deed  should  be  recorded  to  give  it  effect  against  subsequent 
honajide  purchasers  or  incumbrancers,  then  there  would 
have  remained  an  interest  in  Edwards  (the  grantor)  upon 
which  the  judgment  would  have  been  a  lien,  and  though 
our  statute  does  not  save  the  rights  of  judgment  creditors, 
and  the  judgment  alone  is  unavailing  as  an  incumbrance 
against  an  unrecorded  deed,  yet  when  that  judgment  is 
enforced,  and  a  sale  is  made  upon  execution,  and  the 
sheriff's  deed  is  first  recorded,  the  purchaser  becomes  a 
honajide  purchaser,  and  in  that  character  is  entitled  to  the 
property  in  preference  to  the  grantee  of  the  unrecorded 
deed."  Apply  these  views  of  the  law,  predicated  upon  the 
limited  and  peculiar  statute  of  New  York,  and  still  they 
fully  sustain  the  general  conclusion  to  which  we  have 
arrived  in  this  case.  But  as  the  statute  of  that  state  does 
not  justify  the  same  efficiency  and  force  to  judgment  liens, 
the  decisions  of  their  com*ts  upon  those  points  cannot  be 
applicable  to  Iowa.  So  far  as  they  are  applicable,  we  are 
disposed  to  regard  them  as  reliable  autliority,  and  from 
which  we  think  there  has  been  no  departure  in  adjudicat- 
ing the  questions  involved  in  this  case.* 

Judgment  affirmed. 

M,  D,  Browning  and  J.  C.  Hall,  for  plaintiff  in  error. 

Henry  W.  Starr,  for  defendant. 

*  A  petition  presented  for  a  reliearing  of  this  case  was  overruled. 


BURLINGTON,  MAY,  1849.  56 


De  Louis  v.  Meek. 


DE  LOUIS  et  al.  v.  MEEK  et  al, 

A  bill  to  vacate  a  judgment  of  partition  for  fraud  may  be  in  the  nature  of  a 
lill  of  review,  and  may  be  demurred  to  for  want  of  equity. 

No  motion  having  been  made  to  amend,  a  bill. may  be  dismissed,  and  a  de- 
cree rendered  upon  the  demurrer. 

Upon  a  general  and  special  demurrer  it  is  not  necessary  to  make  good  all 
the  causes  of  demurrer  assigned.  If  sustained  for  one  out  of  several 
causes  affecting  the  whole  bill,  it  is  sufficient. 

A  demurrer  puts  in  issue  the  entire  equity  of  the  bill,  and  if  sustained  as  to 
some,  it  shouid  be  as  to  all  the  defendants. 

The  objection  of  a  misjoinder  of  complainants  cannot  be  made  for  the  first 
time  at  the  hearing,  but  should  be  assigned  among  the  causes  of  demurrer. 

An  allegation  of  fraud  in  a  bill  to  set  aside  a  partition,  is  sufficiently  specified 
where  it  charges  that  the  attornej*  for  plaintiffs  in  the  partition  suit  entered 
the  appearance  of  complainant  without  his  knowledge,  consent,  or  autho- 
rity, and  thereupon  admitted  a  large  amount  of  spurious,  fraudulent  and 
unjust  claims  to  others,  which  proportionably  diminished  his  share  in  the 
property. 

Where  a  bill  charges  actual  fraud  on  the  ground  of  deception,  artifice  and 
circumvention,  in  terms  judicially  intelligible,  it  is  sufficient. 

Where  a  judgment  in  partition  is  alleged  to  have  been  obtained  by  fraud,  it 
may  be  impeached  by  an  original  bill  without  leave  of  the  court. 

If  the  attorney  of  a  party  by  fraudulent  representations  procure  his  oppo- 
nent's defeat  in  court,  or  if  an  attorney  appear  and  act  for  a  party  without 
his  knowledge  or  authority,  the  party  injured  may  be  relieved  in  a  court 
of  equity  on  the  ground  of  fraud. 

The  provisions  of  the  partition  act  can  only  apply  to  proceedings  within  its 
legitimate  power,  and  not  to  proceedings  mala  fide. 

Fraud  vitiates  the  most  important  judicial  acts. 

If  in  a  compromise  partition,  the  petitioners  or  their  attorneys  act  fraudu- 
lently by  misrepresentation  or  concealment,  the  party  injured  ia  entitled 
to  relief  in  equity. 

A  general  allegation  of  fraud  in  a  bill  is  sufficient,  if  so  certainly  and  dis- 
tinctly stated  as  to  make  the  subject  matter  of  it  clear. 

Appeal  from  Lee  District  Court, 

Opinion  by  "Williams,  C.  J.  Elizabeth  De  Louis,  for- 
merly Elizabeth  Hunt,  John  Wright,  and  Henry  De  Louis, 
husband  of  the  said  Elizabeth,  on  the  20th  day  of  August, 
1845,  filed  their  bill  of  complaint  against  William  Meek 
et  al. ,  in  the  district  court  of  Lee  county,  setting  forth  that 
by  treaty  between  the  United  States  of  America  and  the 


56  SUPREME  COURT  CASES, 

De  Louis  v.  Meek. 


Sac  and  Fox  nation  of  Indians,  dated  August  4,  1824, 
a  certain  tract  of  land  lying  and  being  within  said  county 
of  Lee,  and  commonly  known  as  the  "  Half-breed  Tract," 
and  lying  between  the  rivers  Des  Moines  and  the  Missis- 
sippi, and  bounded  on  the  north  by  a  line  running  due 
east  from  the  north-west  corner  of  the  state  of  Missouri 
to  the  Mississippi  river,  as  in  said  treaty  set  forth,  was 
reserved  for  the  use  of  the  half-breeds  belonging  to  the 
Sac  and  Fox  nation,  to  be  held  by  them  as  other  Indian 
titles  were  held ;  that  on  the  30th  of  June,  1834,  by  an  act 
of  Congress,  the  reversionary  interest  of  the  United  States 
was  relinquished,  and  vested  in  such  half-breeds  as  were 
by  the  Indian  title  entitled  to  the  same,  under  the  reserva- 
tion in  said  treaty ;  that  the  tract  of  land  contains  about 
119,000  acres,  more  or  less;  that  Elizabeth  De  Louis  is 
one  of  said  half-breeds  mentioned  in  the  treaty,  and  in 
said  act  of  Congress,  to  whom  said  reservation  and 
relinquishment  was  made ;  that  by  virtue  thereof  she 
became  the  legal  owner  of  one  full  undivided  and  equal 
share  of  said  tract  of  land,  in  fee,  in  common  with  the 
other  half-breeds  designated  and  intended  as  the  re- 
cipients of  the  said  reservation  and  relinquishment  of 
the  land  aforesaid ;  that  she  was  married  to  Henry  De 
Louis ;  that  she,  or  her  said  husband,  had  never  sold,  or 
in  any  manner  parted  with,  her  or  theh  interest  in  said 
land,  but  had  since  said  treaty  resided  en  the  land,  and 
had  never  in  any  manner  abandoned  the  same  or  her 
interest  therein ;  that  she  and  her  husband,  at  the  time 
of  the  filing  of  the  bill,  were  entitled  to  one  equal  share 
of  the  land;  and  that  they  then  resided  on,  and  occupied 
a  part  of  the  land,  as  their  home,  and  had  made  im- 
provements thereon. 

The  bill  then  sets  forth  that  John  Wright  claims,  and 
is,  the  owner  in  fee  of  one-fourth  of  a  full  share  in  the 
said  land,  so  held  by  reserve  and  relinquishment  as  afore- 
said, by  purchase  from  one  Isaac  R.  Camj)bell,  and  Wil- 
son Overall,  who  had  purchased  the  same  from  Franpoise 
Hebert,  a  half-breed  of  the  Sac  and  Fox  nation,  who  was 


BURLINGTON",  MAY,  1849.  57 


De  Louis  v.  Meek. 


entitled  thereto  by  virtue  of  the  treatj'  and  act  of  Congress 
aforesaid ;  that  she,  the  said  Fran^-oise,  had  intermarried 
with  one  Charles  Menar ;  that  at  the  time  of  the  relin- 
quishment she  had  not  abandoned  her  chiim,  and  had  her 
home  on  the  land ;  that  she  and  her  said  husband  had 
conveyed  then-  share  in  the  land  to  the  said  Campbell  and 
Overall,  from  whom  said  Wright  had  purchased  the  ssame 
for  a  valuable  consideration.  For  all  which,  reference  is 
made  to  the  title-deeds,  ready  to  be  produced  in  court. 

The  claim  and  title  of  Wright,  by  proper  deeds  of  con- 
veyance from  Hebert  and  wife  to  him,  for  one-fourth  of  a 
share  in  the  land  in  common  with  the  other  owners,  is  set 
forth,  with  the  averment  that  he  had  his  home  and  resided 
on  the  land  at  the  time  of  making  his  complaint,  and  for 
a  long  time  before  it,  and  that  he  was  an  occupant  thereof, 
and  had  made  valuable  improvements  on  said  half-breed 
tract.  The  complainants  then  proceed  to  state  in  their 
bill,  that  on  or  about  the  14th  day  of  April,  1840,  Josiah 
Spalding,  and  others  therein  named,  filed  in  the  district 
court  of  Lee  county  their  petition  for  a  jDartition  of  said 
half-breed  tract  of  land  among  themselves  and  certain 
other  persons  pretending  and  claiming  to  be  the  persons 
entitled  thereto  under  the  treaty,  reservation  and  relin- 
quishment aforesaid,  or  legally  claiming  under  those  who 
were  originally  so  entitled ;  that  very  many  of  the  persons 
so  petitioning  had  no  good  and  legal  right  or  equitable 
title  to  any  part  of  said  tract  of  land.  The  bill  admits 
tliat  the  claims  or  titles  of  thirty-three  persons  besides 
those  of  De  Louis  and  Wright,  the  complainants,  are 
correct  and  just,  and  avers  that  all  the  rest  and  residue  of 
the  claims  which  were  adjudicated  and  allowed  in  the  said 
decree  of  the  district  court,  made  upon  the  said  petition 
for  the  partition  of  the  said  land,  were  illegal  and  fraudu- 
lent, being  obtained  in  the  names  of  persons  who  had  no 
real  existence,  or  by  persons  who  had  fraudulently  repre- 
sent(Ml  themselves  to  be  half-breeds  when  in  truth  they  were 
luu  :  and  that  the  petitioners  well  knew  that  the  said  claims 
wci'e  inijust.  and  could  not  be  substantiated  by  legal  proof. 
Vol.  II.  6 


68  SUPREME  COURT  CASES, 


De  Louis  v.  Meek. 


The  bill  also  charges,  on  behalf  of  Wright,  that  Reid 
&  Johnston,  solicitors  of  the  district  court  of  Lee  county, 
entered  his  appearance  for  him,  said  Wright,  in  the  suit 
for  partition  in  which  the  decree  was  entered,  and  assumed 
to  act  for  him  without  any  legal  authority  so  to  do,  and 
without  his  knowledge,  and  consented  to  the  decree  on 
the  part  of  your  orator  without  legal  authority  so  to  do , 
that  they,  said  Reid  &  Johnston,  were  at  the  same  time 
acting  as  solicitors  for  Marsh,  Lee  &  Delavan,  and  others 
in  the  same  proceeding ;  that  they  entered  into  said  con- 
sent so  as  to  procure  a  large  portion  of  said  spurious  claims 
to  be  allowed  in  favor  of  said  Marsh,  Lee  &  Delavan,  and 
others,  so  as  to  swell  greatly  their  interests,  and  thereby 
proportionably  to  diminish  that  of  said  Wright ;  that  all 
such  claims  to  said  land,  so  admitted  and  allowed,  except 
the  thirty-three  shares  and  one-fourth  of  a  share  named 
in  petitioners'  bill  of  complaint,  were  fraudulent  and 
unjust,  never  could  have  been  substantiated  by  legal 
proof,  and  would  never  have  been  admitted  into  the  decree 
except  by  the  consent  or  compromise  so  made.  It  then 
avers  that  the  actings  and  doings  aforesaid  are  contrary 
to  equity  and  good  conscience,  and  that  the  petitioners 
were  thereby  greatly  injured  and  defrauded. 

It  is  also  charged  in  the  bill  that  the  consent  or  com- 
promise upon  which  the  decree  was  entered,  was  made  by 
the  parties  thereto  and  the  conductors  thereof  in  fraudu- 
lent confederation  and  collusion  with  each  other,  they 
having  combined  to  cheat  and  defraud  petitioners  in  the 
premises,  and  that  the  complainants  did  not  participate 
therein ;  that  the  same  was  intended  to,  and  did,  injure 
the  rights  and  possessions  of  the  petitioners,  and  injm'i- 
ously  affect  and  endanger  them  in  the  quiet  enjoyment  of 
then"  improvements  and  homes  on  the  said  half-breed  tract 
of  land. 

The  bill  further  charges  that  the  decree  was  produced 
and  obtained  by  falsely  and  fraudulently  inducing  the 
court  which  made  it  to  believe  that  all  legal  claimants 
interested  in  the  said  tract  of  land  were  duly  and  legally 


BURLINGTON,  MAY,  1849.  59 

De  Louis  v.  Meek. 

represented  in  said  court,  and  that  their  rights  were  equit- 
ably secured  thereby ;  that  they,  or  persons  legally  author- 
ized to  act  for  them  in  the  premises,  had  mutually  agreed 
and  consented  thereto,  and  had  agreed  on  their  respective 
interests  in  the  land  as  therein  adjusted,  all  of  which  was 
untrue  in  point  of  fact;  that  by  such  fraudulent  collusion 
the  court  was  deceived,  and  induced  to  order,  adjudge  and 
decree,  and  did  order  and  decree,  that  the  claims  and  rights 
of  the  said  half-breed  claimants  amounted  to  one  hundred 
and  one  in  number,  as  equal  portions  or  shares ;  and  that 
the  said  one  hundred  and  one  shares  should  be  divided 
amongst  certain  persons,  parties  to  said  decree,  who  are 
made  parties  to  this  bill  as  defendants,  in  the  proportions 
specified  in  said  decree,  and  that  the  rights,  titles  and 
claims  of  all  other  persons  should  thereafter  be  barred 
and  concluded  as  to  the  land ;  that  these  doings  are  against 
and  in  derogation  of  the  rights  of  the  petitioners,  and 
contrary  to  equity  and  good  conscience. 

It  is  then  stated  in  the  bill  that  commissioners  were 
appointed  to  make  partition  of  the  land  into  one  hundred 
and  one  shares  of  equal  value  among  the  parties  to  the 
proceeding  for  the  decree.  Reference  is  made  to  the  pro- 
ceedings in  partition,  making  them  part  of  the  bill. 

John  Wright  also  complains  that  he  appeared  at  the 
place  of  holding  of  the  said  court  at  the  term  when  the 
decree  was  made,  and  before  the  making  of  it,  for  the 
])arpose  of  proving  up  his  ''claim,  and  to  obtain  his  just 
rights ;  and  that  he  was  informed  by  one  of  the  counsel 
lor  the  complainants  in  said  petition  for  partition,  that 
the  cause  would  not  be  tried  at  that  term.  He  avers  that 
this  was  done  before  any  agreement  in  the  case  was  made, 
or  any  action  had  upon  said  petition  for  the  perfecting  or 
making  of  said  final  decree ;  that  under  this  assurance 
from  said  counsel  he  left  the  court,  and  returned  to  his 
home,  under  the  belief  that  no  such  trial  would  be  had  at 
that  term ;  that  the  information  so  received  from  said 
counsel  was  untrue  and  fraudulent  in  point  of  fact,  and 
that  by  means  of  which  he,  the  said  Wright,  was  fraudu- 


60  SUPREME  COURT  CASES, 

De  Louis  v.  Meek. 

lently  induced  to  believe  that  liis  Toeing  longer  present  at 
that  term  of  the  court  was  unnecessary;  that  he  was 
thereby  induced  to  leave  and  go  home,  and  therefore 
failed  to  be  present  and  attend,  as  he  otherwise  would 
hnve  done,  to  the  procurement  of  his  just  and  equitable 
rights,  by  reason  of  which  said  Wright  alleges  that  he 
was  greatly  cheated  and  defrauded,  and  suifered  damage. 

The  bill  then  sets  forth  the  names  of  the  persons  who 
received  by  said  decree  beneficial  interests,  among  whom 
are  Marsh,  Lee  &  Delavan,  trustees  of  the  New  York  Land 
Company,  and  Isaac  Galland  and  others.  The  bill  charges,. 
in  conclusion,  that  the  decree  was  obtained  by  collusion 
and  fraud  generally,  and  that  it  ought  to  be  vacated,  set 
aside  and  made  void,  and  that  the  land  in  said  tract  ought 
to  be  partitioned  anew  among  the  rightful  owners  thereof 
The  prayer  of  the  bill  is  for  the  proper  legal  process  ta 
compel  the  parties  respondent  to  appear  and  answer ;  that 
they  be  made  to  discover  by  what  right  they  claim  to  hold 
any  interest  or  claim  in  the  land ;  that  they  may  be  put 
on  the  proof  of  their  claims  before  the  same  may  be  allowed; 
that  all  and  singular  the  facts  of  the  case,  and  rights  of  the 
respective  parties  and  true  claimants,  be  made  to  appear, 
that  full  justice  and  equity  may  be  done  in  the  premises, 
in  order  that  a  full  and  ample  relief  in  the  premises,  both 
general  and  special,  may  be  granted  and  decreed,  as  equity 
and  good  conscience  and  the  nature  of  the  case  shall  re- 
quire ;  and  especially  that  the  decree  aforesaid  be  vacated 
and  annulled  for  the  fraud  aforesaid,  and  that  a  re-parti- 
tion of  said  lands  may  be  had  among  the  rightful  owners 
thereof,  according  to  their  respective  shares  and  interests 
therein ;  and  that  full  and  complete  justice  may  be  done 
in  the  premises  to  all  parties  concerned,  according  to  the 
rules  and  principles  of  a  court  of  equity. 

The  foregoing  is  the  substance  of  the  bill  of  the  com- 
plainants in  this  action.  To  this  bill  the  respondents 
demurred  generally  and  specially,  on  the  ground  that  it 
(lid  not  show  equity  on  its  face.  Several  special  causes  of 
demurrer  were  assigned,  as  follows ; 


BURLINGTON,  MAY,  1849.  61 

De  Louis  v.  Meek. 

1 .  The  bill  is  defective  in  form  and  substance,  and  con- 
tains no  equity  entitling;  complainants  to  relief  in  chan- 
cery. "  The  bill  charges  fraud  generally,  but  does  not  set 
out  such  facts  as  warrant  the  charge  of  fraud,  either  as  to 
complainant  Wright  being  deceived,  or  as  to  Reid  & 
Johnston  representing  complainants  and  defendants.  Nor, 
as  to  the  compromise,  that  the  parties  knew  bad  claims 
were  allowed,  nor  that  the  court  was  deceived  and  the 
decree  obtained  by  fraud." 

2.  "  The  bill  is  defective  and  insufficient,  as  it  does  not 
specify  any  error  apparent  on  the  face  of  the  decree  or 
record,  but  only  alleges  imposition  on  the  court,  by  which 
the  court  decreed  erroneously  with  reference  to  the  real 
justice  of  the  case,  but  right  according  to  the  record,  which 
is  not  allowable  in  a  bill  of  review." 

3.  Said  bill,  although  filed  as  a  bill  of  review,  con- 
tains matter  that,  if  otherwise  sufficient,  is  only  proper 
for  a  bill  impeaching  the  decree  for  fraud,  which  is  not 
allowed. 

4.  The  matter  alleged  in  the  bill  charging  fraud,  and 
which  is  the  only  pretended  equity  in  said  bill,  cannot  be 
urged  in  such  a  bill  (impeaching  the  decree  for  its  fraud- 
ident  obtension)  by  complainants,  who  were  parties  to  the 
decree. 

5.  Said  bill  is  defective,  because  it  does  not  definitely 
show  wdiat  is  its  character ;  whether  a  bill  of  review,  or  a 
bill  impeaching  the  decree  for  fraud  in  its  obtension. 

G.  Said  bill  does  not  sufficiently  set  out  the  errors,  if 
any,  in  said  decree,  by  showing  the  proceedings  void,  and 
the  particular  error  in  the  decree,  as  reqniired  by  the  rules 
of  chancery  jjleading. 

The  demurrer  was  sustained  by  the  court  below,  and  is 
now  here  on  appeal.  As  the  counsel  concerned  for  the 
parties  have  taken  the  complaint  in  this  case,  as  filed,  to 
be  a  bill  in  chancery  in  the  nature  of  a  bill  of  review, 
impeaching  the  decree  in  partition  for  fraud,  and  have  so 
treated  it  upon  the  argument ;  and  as  this  court  is  of  the 
opinion  that  this  is  the  proper  character  of  the  bill,  it  will 


62  SUPREME  COURT  CASES, 

De  Louis  v.  Meek. 

be  SO  considered.  This,  then,  being  the  character  of  the 
bill,  we  will  proceed  to  examine  the  case,  as  presented  on 
the  demurrer  of  the  respondents  filed  thereto. 

The  demurrer  is  general,  and  denies  that  the  bill  of  the 
complainants  contains  any  equity  upon  which  to  maintain 
their  suit  in  a  com't  of  chancery  for  relief. 

That  the  defendants  had  a  right  to  demur  to  the  bill  for 
want  of  equity,  we  think  cannot  be  with  propriety  ques- 
tioned. It  was  their  privilege  in  a  proceeding  such  as 
this,  to  resist  in  the  outset  of  the  trial,  by  putting  in  ques- 
tion the  legal  right  of  the  complainants  to  obtain  a  decree 
in  accordance  w4tli  their  prayer  upon  their  own  showing 
in  the  bill,  and  thus  put  to  the  test  of  law  the  case  as 
stated.  It  is  the  peculiar  province  of  a  court  of  equity  to 
entertain,  investigate  and  decide,  questions  of  conscience, 
affecting  the  rights  of  the  citizen,  upon  the  pure  and  full 
principles  of  justice  But,  in  this  court,  the  party  com- 
plaining and  seeking  redress  must  come  to  her  altar  with 
pure  hands,  in  good  faith,  and  prepared  to  show  that  he  is 
chargeable  with  no  fault  or  gross  negligence  on  his  part. 
He  must  bring  himself  within  the  well  defined  limits  of 
the  judicial  sphere,  as  prescribed  by  the  rules  of  practice, 
in  compliance  with  which  alone  justice  can  be  properly 
invoked.  He  must  show  that  be  is  injured  in  his  rights 
by  those  of  whom  he  complains ;  that  he  has  a  right  to 
complain ;  that  the  wrong  of  which  he  complains  is  not 
his  own;  and  that  he  has  not  an  adequate  remedy  in  a 
court  of  law.  Failing  thus  to  assume  the  proper  position, 
it  is  the  legal  privilege  of  the  respondent  to  demur,  and 
put  his  complaint  to  the  test  of  law.  The  privilege  of 
demurring  to  a  bill  such  as  this  cannot  be  questioned.  See 
Story's  Eq.  PI.,  §§  637,  639. 

Objection  to  the  action  of  the  court  below  has  been  made 
by  the  counsel  of  the  complainants,  in  entering  judgment 
against  them  upon  the  demurrer.  It  is  urged  that  they 
should  have  been  allowed  to  amend.  The  demurrer  being 
sustained  on  the  ground  that  the  bill  contained  no  equity, 
and  as  no  motion  was  made  for  leave  to  amend  before 


BURLINGTON,  MAY,  1849.  63 


Do  Louis  V.  Jleek. 


judgment  was  entered,  there  is  no  error  in  this.  Story's 
Eq.  PI.,  §  361  ;  Rev.  Stat,  p.  108,  §§  16,  17. 

It  is  also  contended  by  the  complainants,  that  the 
particular  causes  of  demurrer  should  have  been  distinctly 
pointed  out  by  the  party  demurring.  This  would  be  cor- 
rect, if  the  demurrer  were  strictly  special  in  its  nature. 
The  demurrer,  with  the  causes  assigned,  attacked  the  bill 
in  a  twofold  character,  with  a  view  to  defeat  it  in  either. 
It  does  not  bear  the  badge  of  a  mere  bill  of  review,  and 
therefore  the  special  causes  assigned  to  assail  it  in  that 
shape  need  not  be  considered ;  but,  taking  it  as  a  bill  in 
the  nature  of  a  bill  of  review,  impeaching  the  decree  for 
fraud,  its  equity  is  directly  denied  by  some  of  the  causes 
assigned.  The  assignments  go  to  the  entire  gravamen  of 
the  complaint,  so  as  to  defeat  it  entirely  on  matter  of  sub- 
stance ;  therefore  the  fact  that  the  respondents  failed  to 
make  the  other  special  causes  of  demurrer  good  did  not 
deprive  them  of  the  benefit  of  those  which  were  valid  in 
the  court  below.     Story's  Eq.  PI.,  350,  §  443. 

It  is  alleged,  also,  that  a  part  of  the  defendants  only 
have  demurred,  and  that,  as  to  the  rest,  the  bill  should  not 
have  been  dismissed.  We  have  just  stated  that  the  de- 
murrer strikes  at  the  bill  as  entirety,  putting  in  issue  its 
whole  substance,  on  the  charge  of  fraud,  against  all  the 
defendants.  Upon  this  issue  in  law  the  right  of  action  as 
to  one  and  all  of  the  parties  was  at  stake.  The  bill  seeks 
to  set  aside  the  decree  in  partition  for  fraud  in  obtaining 
it.  If  the  decree  be  set  aside  as  to  one  of  the  defendants, 
it  will  be  so  as  to  all.  This  rule  in  legal  proceeding  is  in 
consistency  with  the  dictates  of  sound  reason  and  justice. 
1  Scam.,  553  ;  Vansc/iai/i  v.  Trotter,  6  Cowen,  600.  Suf- 
ficient, however,  has  been  said  on  this  point,  as  upon 
the  argument  it  was  not  strenuously  urged.  Whilst  con- 
sidering the  points  touching  the  demurrer,  and  the  bill  as 
affected  by  it,  together  with  the  action  of  the  court  upon 
it,  it  may  be  proper  here  to  dispose  of  a  question  raised 
by  counsel  for  the  defendants.  It  is  urged  by  them  that 
the  bill  shows  a  misjoinder  of  the  complainants,  and  ia 


6.4  SUPREME  COURT  CASES, 

De  Louis  V.  Meek. 

therefore  bad.  If  this  objection  to  the  bill  be  well  founded, 
it  sliould  have  appeared  among  the  causes  of  demurrer 
assigned,  so  that  the  case  might,  in  accordance  with  the 
rules  of  jjractice,  have  been  disencumbered,  by  the  dis- 
missal of  an  improper  party.  On  this  point,  see  Boydw 
Iloijt,  5  Paige,  65 ;  Trustees  of  Watertonn  v.  Cowa/n,  4 
Poigo,  510.  In  the  case  of  Grimes  v.  Wilson,  4  Blnckf., 
o35,  this  matter  is  discussed,  and  the  true  principle  pre- 
sented. There  the  parties  stood  in  no  privity  with  each 
other  ;  one  was  an  infant,  and  had  a  good  case  in  equity ; 
the  other  had  a  distinct  cause  of  action  clearly  cognizable 
at  common  law,  showing  no  impediment  to  his  remedy 
there.  There  was  np  privity  existing  between  them  ;  their 
interests  were  separate ;  their  demands  independent.  In 
such  a  case  the  bill  would  be  dismissed  in  answer  to  the 
proper  pleading.  In  the  case  at  bar,  altliough  in  the  pro- 
ceedings in  partition,  as  set  forth  in  the  bill,  the  condition 
of  the  complainants  is  shown  to  be,  in  some  respects, 
different,  their  interests  in  the  end  sought,  by  imi)e;ichiDg 
the  judgment  or  decree  of  partition,  is  one  and  the  same. 
The  rights  claimed  by  all  the  complainants  are  conjoined 
by  the  issue  to  be  tried  on  the  merits  of  the  bill.  The 
doctrine  here  asserted  and  adopted  by  this  court  is  found 
in  the  case  of  Ballantine  v.  Beall,  3  Scam.,  206,  and 
Story's  Eq.  PI,  530  and  note,  531,  532,  535;  Tarrick  v. 
Smith,  5  Paige,  560;  Brinkerhoff  v.  Brown,  6  John.  Ch., 
1 50.  We  deem  it  unnecessary  to  refer  to  fiu-ther  author- 
ities on  this  point,  as  we  think  the  principle  and  practice 
on  it  well  established.  Where  there  is  unity  in  interest, 
as  to  the  object  to  be  attained  by  the  bill,  as  in  this  case, 
the  parties  seeking  redress  in  chancer}^  may  join  in  the 
same  complaint  and  maintain  their  action  together.  In 
such  a  case,  it  is  within  the  province  of  a  court  of  chancery 
to  mete  out  to  each  and  all  of  the  comj^lainauts  their 
rights,  on  the  principle  of  sound  equity. 

The  objections  presented  touching  the  demurrer  being 
disposed  of,  we  will  proceed  to  consider  the  bill  under  its 
legal  operation.      We  have  already  said  that  the  entire 


BURLINGTON,  MAY,  1849.  65 

De  Louis  v.  Meek. 

€quity  of  the  bill  is  put  in  question  by  the  demurrer. 
Have  the  complainants  presented  such  a  case  by  their  bill 
as  will  justify  a  court  of  chancery  in  granting  the  relief 
sought  ? 

The  complainants,  De  Louis  and  wife,  show,  on  their 
part,  that  they  are  the  owners  in  fee  of  one  full  share  of 
the  tract  of  land  known  as  the  half-breed  tract,  situated 
in  Lee  county,  Iowa,  to  which  Elizabeth,  the  wife  of  said 
De  Louis,  became  entitled,  as  one  of  the  original  half- 
breed  proprietors  thereof,  by  treaty  between  the  United 
States  and  the  Sac  and  Fox  Indians,  made  August  4, 
1824,  and  by  the  act  of  Congress  of  June  30,  1834 ;  that 
the  tract  contains  about  119,000  acres  of  land,  more  or 
less ;  that  she  held  the  same  in  common  with  others 
claiming  by  the  same  title  ;  that  the  said  De  Louis  and 
wife  are  legally  entitled  to  the  same,  &c.  John  Wright 
claims  by  title  derived  from  the  same  source,  by  regular 
conveyance,  and  shows  that  he  as  owner  is  entitled  to 
one-fourth  of  a  full  share  of  the  said  tract ;  that  he  lives 
on  the  land,  has  made  valuable  improvements,  &c.  By 
this  showing  the  complainants  put  themselves  in  the  con- 
dition of  persons  claiming  and  having  rights  of  valuable 
consideration,  involved  with  those  of  others  in  such  pro- 
ceeding at  law,  as  may  have  been  resorted  to  for  the 
adjustment  of  the  interests  of  the  several  owners  of  the 
laud  in  question. 

They  then  complain  that  by  the  agreement  and  consent 
of  Marsh,  Lee  &  Delavan,  and  others,  and  their  counsel 
participant  therein,  they  have  been  injured  in  anddei)rived 
of  their  just  rights;  and  therefore  seek  relief,  by  praying 
that  the  judgment  in  partition  of  said  land,  entered  by 
the  district  court  of  Lee  county  on  the  6th  of  May,  1842, 
may  be  set  aside  for  fraud. 

AVe  will  proceed  to  examine  the  points  made  as  to  the 
merits  of  the  bill  on  the  ground  of  fraud.  Although  the 
bill  has  been  dismissed  as  to  De  liouis  and  wife  on  their 
own  motion,  having  been  parties,  we  must  consider  it  as  it 
was  in  the  court  below.     In  the  first  place,  it  is  contended 


66  SUPREME  COURT  CASES, 

De  Louis  v.  Meek. 

that  the  charge  of  fraud,  as  laid  in  the  bill,  is  insufficient 
in  law  ;  that  the  charge  is  general,  and  does  not  allege  the 
fraud  in  proper  specitications  as  to  the  particular  facts  in 
which  it  consists.  Judge  Story,  in  his  Equity  Jurispru- 
dence, vol.  1,  p.  196,  §  186,  says  :  "  It  is  not  easy  to  give 
a  definition  of  fraud  in  the  extensive  signification  in  which 
that  term  is  used  in  courts  of  equity,  and  it  has  been  said 
that  these  courts,  very  wisely,  never  laid  down  as  a  general 
proposition  what  shall  constitute  fraud,  or  any  general 
rule  beyond  which  tliey  will  not  go,  upon  the  ground  of 
fraud,  lest  other  means  of  avoiding  the  equit}''  of  the 
courts  should  be  found  out.  That  fraud  is  more  odious 
than  force."  He  then  proceeds,  on  page  197,  in  the  next 
section,  to  give  a  definition  in  substance,  by  saying  that, 
"  Fraud,  indeed,  in  the  sense  of  a  court  of  equity,  pro- 
perly includes  all  acts,  omissions  and  concealments,  which 
involve  a  breach  of  legal  or  equitable  duty,  trust  or  confi- 
dence justly  reposed,  and  are  injurious  to  another,  or  by 
which  an  undue  and  unconscientious  advantage  is  taken 
of  another." 

Applying  this  view  of  fraud  in  the  court  of  equity,  how 
does  this  case  stand  upon  the  biil  ?  It  contains,  in  the 
first  place,  a  specific  charge  that  the  attorney  for  the  peti- 
tioners for  partition,  without  the  knowledge,  consent  or 
authority  of  John  Wright,  the  complainant,  entered  their 
appearance  for  him,  acting  at  the  same  time  for  the  peti- 
tioners, and  entered  into  a  consent  and  agreement  to  allow 
a  large  number  of  false  and  spurious  claims  in  favor  of 
Marsh,  Lee  &  Delavan,  and  others,  so  as  greatly  to  swell 
their  interest,  and  thereby  proportionably  to  diminish  his. 
It  then  proceeds  to  aver  that  all  the  claims  so  allowed, 
except  the  thirty-three  shares  and  one-fourth  of  a  share,  as 
enumerated  in  the  bill,  and  set  forth,  are  fraudulent  and 
unjust,  could  never  have  been  substantiated  by  legal  proof, 
and  would  nevfer  have  been  admitted  into  said  decree, 
except  by  such  compromise  ;  that  the  actings  and  doings 
of  the  parties,  conductors  and  others,  concerned  in  making 
the  compromise,  are  contrary  to  equity  and  good  con- 


BURLINGTON,  MAY,  1849.  G7 

De  Louis  V.  Meek. 

science ;  and  that  by  reason  thereof,  the  complainants 
have  been,  and  are  greatly  injured  and  defrauded  in  the 
premises.  The  charge  of  fraudulent  confederation  and 
collusion  in  making  the  compromise  is  clearlymade  against 
the  parties  thereto  and  the  conductors  thereof,  they  having 
so  combined  to  cheat  and  defraud  the  complainants  in  the 
premises,  and  thus  to  deprive  them  of  their  just  right;  and 
to  endanger  and  disturb  them  in  the  quiet  enjoyment  of 
their  possessions  and  improvements  on  the  tract  of  land 
aforesaid.  The  bill  also  charges  that  fraud  and  deceit 
were  practised  upon  the  court  by  inducing  it  to  believe 
that  the  compromise  was  brought  about  by  mutual  consent 
of  the  rightful  owners  of  the  land,  and  proper  parties  to 
the  proceeding,  or  those  duly  authorized  to  act  in  their 
behalf;  that,  in  fact,,  all  this  was  untrue. 

That  persons  interested  in  land,  as  owners,  being  ten- 
ants in  common,  may  by  consent  and  agreement  among 
themselves,  dona  fide  make  a  division  thereof  so  as  to 
sever  their  interests,  and  thereupon,  waiving  the  ordeal 
of  trial  by  proof  in  court  as  to  title,  procure  a  deed  of 
I)artition,  is  not  doubted.  In  doing  this,  however,  if  there 
be  owners  whose  interests  are  involved,  who  are  not  per- 
sonally present,  and  do  not  participate  in  such  consent,  or 
who  are  not  represented  legally  in  the  transaction,  and 
whose  interests  or  just  rights  may  be  injuriously  ailected 
or  lost  thereby,  such  persons  may  seek  and  find  redi'ess  in 
a  court  of  equity.  If,  in  the  procurement  of  such  decree 
or  judgment,  fraud  be  resorted  to  by  the  parties  obtaining 
it,  then  upon  a  proper  case  being  made  out  b}'  those  who 
may  liave  been  injured  by  it,  a  court  of  equity  will,  in  the 
exercise  of  its  power,  give  relief. 

It  is  admitted  tliat  the  bill  charges  fraud  in  general 
terms.  Then,  if  it  contains  an}'  allegations  of  fact  upon 
wliich  the  equitable  interposition  of  this  court  is  invoked, 
what  are  they  ?  Do  they  show  that  the  defendants  used 
cunning,  deception  or  artifice  to  circumvent,  cheat  or 
deceive  the  complainants  ?  And  do  they  charge  defend- 
ants with  positive  or  actual  fraud  in  the  fact?  or  that  they 


68  SUPREME  COURT  CASES, 

De  Louis  v.  Meek. 

are  justly  chargeable  with  acts,  omissions  and  conceal- 
ments, which  involve  a  breach  of  legal  or  equitable  duty, 
trust  or  confidence,  justly  reposed,  and  by  which  the  com- 
plainants are  injured?  The  fact  that  the  decree  was  not 
obtained  in  the  ordinary  mode  of  trial,  as  to  proof  of  tlie 
rights  of  complainants  to  the  land,  bat  by  consent,  is 
clearly  stated.  Also,  that  very  many  of  the  persons  who 
petitioned  for  a  decree,  and  who  participated  in  the  con- 
sent or  compromise  upon  which  the  decree  was  made  and 
entered,  and  Avho  were  benefited  thereby,  had  no  good  or 
legal  right,  or  equitable  title,  to  any  part  of  the  tract  of 
land  which  was  divided  among  them  ;  that  about  two- 
thirds  of  the  claims  admitted  and  allowed  were  spurious, 
fraudulent,  unjust  and  illegal;  and  being  so,  were  taken 
into  the  decree  so  as  to  swell  the  interest  of  Marsh,  Lee  & 
Delavan,  and  diminish  the  interests  of  the  complainants 
in  the  land,  are  fully  charged.  The. bill  here,  we  think, 
not  only  charges,  specifically,  facts  which  amount  to 
omissions  and  concealments  in  making  the  compromise 
or  consent,  involving  a  breach  of  equitable  duty,  bnt  that 
petitioners  knew  such  claims  of  Marsh,  Lee  &  Delavan, 
and  others,  were  fraudulent,  false  and  spurious,  and  that 
they  fraudulently  confederated  and  colluded  with  each  other, 
with  the  intent  to  defraud  and  cheat  the  complainants.  In 
this  the  bill  goes  further  than  to  charge  mere  -constructive 
fraud  ;  and  in  terms  judicially  intelligible,  charges  actual 
fraud  on  the  defendants,  on  the  ground  of  deception,  arti- 
fice and  circumvention. 

But  it  is  urged  that  the  proceeding  was  regularly  in 
court,  in  accordance  with  the  provisions  of  the  law  of  the 
state ;  that  the  complainants  had  legal  notice,  and  that  it 
was  their  duty  to  attend  to  their  rights  and  interests  in 
the  land.  We  consider  that  the  bill  furnishes  a  fair  and 
full  answer  to  this  position,  so  far  as  Wright  is  concerned. 
He  charges  that,  at  the  term  of  the  court  when  tlie  decree 
was  made  upon  the  compromise,  and  before  either  was 
made,  he  was  in  attendance  for  the  purpose  of  seeing  to 
his  rights,  and  that  he  was  told  by  one  of  the  counsel  of 


BURLINGTON,  MAY,  1849.  69 

De  Louis  V.  Meek. 

the  petitioners  that  the  cause  -would  not  he  tried  at  that 
term ;  that  under  this  assurance  of  the  counsel  he  left  the 
court  and  went  home.  He  also  charges  that  by  this  act 
of  the  counsel  he  was  fraudulently  and  deceitfully  induced 
to  believe  that  his  presence  was  no  longer  necessary  at 
that  term  of  tlie  court,  and  therefore  he  failed  to  attend  to 
his  rights.  This  act  of  the  counsel  is  laid  in  the  bill  as 
having  operated  to  defraud  him.  An  attorney  or  counsel, 
when  acting  in  court  procedure  for  his  client,  acts  in  his 
stead.  His  acts,  in  managing  the  business  in  court,  are 
the  acts  of  the  client.  It  will  not  be  doubted  that,  if  the 
party  to  a  proceeding  in  court  would,  by  fraudulent  repre- 
sentation, procure  his  opponent's  defeat  in  the  like  manner 
as  stated  in  the  bill  in  this  case,  the  party  injured  might 
be  relieved  in  a  court  of  equity  on  the  ground  of  fraud. 
Then,  in  the  case  of  an  attorney  when  acting  for  his  client, 
the  same  principle  of  equity  and  good  conscience  clearly 
applies.  If  it  did  not,  much  confusion  and  injustice  might 
be  found  to  exist.  We  think  the  fact,  as  stated  in  the  bill, 
that  Wright  was  induced  to  leave  com't,  taken  in  connec- 
tion with  the  fact,  whicli  is  also  alleged  as  a  ground  of 
fraud,  that  the  attorneys  of  Marsh,  Lee  &  Delavan,  and 
other  petitioners,  appeared  and  acted  for  Wright,  the 
complainant,  without  his  authority  or  knowledge,  pre- 
sents a  clear  exception  to  the  general  rule,  and  was  suf- 
ficient to  meet  and  overcome  the  demurrer. 

It  may  be  said  that  the  fact  that  the  attorneys  having 
appeared  for  Wright  without  authority  ought  not  to  affect 
the  petitioners  for  partition,  and  the  otliers  benefited  by 
the  compromise  and  decree.  But  they  were  the  attorneys 
of  Marsh,  Lee  &  Delavan,  and  others,  who  were  seeking 
to  be  benefited  by  the  decree  at  the  same  time.  The 
attorneys,  according  to  the  averments  of  the  bill,  must 
have  known  that  they  had  no  authority  to  appear  for 
AVright  in  making  the  compromise.  When  the  rights  of 
l)arties  are  involved  in  legal  action,  such  knowledge  of 
the  attorney  is,  in  the  general,  considered  as  notice  to  the 
client.     But  clearly,  if  the  attorneys  knew  that  Wright 


70  SUPREME  COURT  CASES, 

De  Louis  v.  Meek. 

had  given  them  no  authority  to  appear  and  consent  to  the 
compromise  for  him,  and  they  failed  to  inform  the  parties 
to  it  of  that  fact,  it  was  a  breach  of  duty  and  against  good 
conscience.  Story's  Eq.  Com.,  395,  §  408 ;  Astorv.  Wells, 
4  Wheat,  466,  4  Condensed,  513;  Fulton  Bank  v.  JSf.  Y. 
^  Sharon  Canal  Co.^  4  Paige,  137. 

But,  supposing  that  the  attorneys  who  appeared  for 
Wright  had  been  authorized  by  him  to  act  as  his  attorneys 
in  the  case,  will  it  be  contended  that  an  attorney  may,  by 
consent  and  compromise,  in  a  case  of  partition  involving 
rights  and  interests  to  a  vast  amount,  admit  a  large 
number  of  unjust,  illegal  and  spurious  claims,  to  the 
prejudice  and  manifest  injury  of  his  client,  without  his 
knowledge,  consent  and  authority  ?  It  is  true  that  courts 
of  equity  will  be  disinclined  to  disturb  a  consent  or  com- 
promise made  by  an  attorney  who  is  authorized  to  appear 
for  a  party  to  a  suit,  unless  it  will  operate  unreasonably 
to  the  prejudice  of  the  interests  of  that  party ;  still,  where 
it  works  great  injustice,  equity  will  give  relief  from  it. 
In  the  case  of  Holker  v.  Parker,  7  Cranch,  436,  the  court 
decided  that  "  although  an  attorney  at  law  has  no  right 
to  make  a  compromise,  yet  a  court  will  be  disinclined  to 
disturb  one  which  was  not  so  unreasonable  in  itself  as 
not  to  be  exclaimed  against  by  all,  and  to  create  an 
impression  that  the  judgment  of  the  attorney  had  been 
imposed  upon  or  not  fairly  exercised.  But  where  the 
sacrifice  is  such  as  to  leave  it  scarcely  possible  that,  with 
a  full  knowledge  of  every  circumstance,  such  a  compro- 
mise could  be  fairly  made,  there  can  be  no  hesitation 
in  saying  that  the  compromise  being  unauthorized,  and 
being  therefore  void,  ought  not  to  bind  the  injured  party. 
Though  it  may  assume  the  form  of  an  award  or  a  judg- 
ment at  law,  the  injured  party  ought  to  be  relieved 
against  it."  This  decision  speaks  the  language  of  sound 
equity,  and,  with  a  proper  reference  to  the  relation  ex- 
isting between  an  attorney  and  his  client,  limits  the  pro- 
fession to  its  sphere  of  representative  action,  leaving 
the    party    represented    professionally    the    indisputable 


BURLINGTON,  MAY,  1849. 


De  Louis  v.  Meek. 


right  of  disposing  of  his  own  property  according  to  his 
will. 

In  contemplation  of  equity,  it  is  not  allowable  for  attor- 
neys or  agents  making  contracts  or  agreement,  with  or 
without  authority,  to  act  in  the  making  of  them  malajide, 
so  as  injuriously  to  affect  others  who  stand  in  such  a 
relation  to  them  as  to  be  affected  by  the  contract  or  tlie 
consequences ;  as  others  besides  the  parties  contracting 
are  concerned,  it  is  properly  said  to  be  governed  by  public 
utility.     Story's  Eq.  Jur.,  326,  §  133. 

This  principle  is  fully  recognized  by  the  supreme  court 
of  Illinois,  and  is  brought  within  the  corrective  power  of 
equity  jurisdiction.  In  the  case  of  Truett  v.  Wainwright 
et  al.^  4  Gilman,  420,  the  court  say:  "  The  setting  aside 
of  judgments,  as  well  in  the  case  where  they  were  procured 
by  the  misconduct  of  the  plaintiffs,  as  where  they  were 
obtained  by  the  unauthorized  appearance  of  strangers, 
rests  at  last  on  the  ground  of  fraud.  The  law  looks  upon 
such  practices,  however  far  the  parties  may  have  been 
from  the  thought  of  actually  committing  a  wrong,  as 
fraudulent,  and  treats  them  as  such."  To  prevent  injus- 
tice of  this  kind  is,  in  the  same  case,  said  to  be  one  of  the 
most  efficient,  and  therefore  most  valuable,  powers  of  a 
court  of  equity. 

The  principle  that  an  attorney  cannot  receive  anything 
but  money  in  satisfaction  of  a  demand  put  into  his  hands 
for  collection,  without  authority  to  do  so  from  his  client, 
has  been  decided  by  the  supreme  court  of  this  state  in  the 
case  of  Mc Carver  v.  Nealhj^  1  G.  Greene,  360.  In  Hop- 
hms  V.  Mallard^  ib.,  117,  it  has  been  decided  that  an 
attorney,  after  the  decision  of  a  case  in  the  district  court, 
without  authority  from  his  client,  is  not  warranted  to 
follow  the  case,  as  such,  into  the  supreme  court  and 
attend  to  it  there,  when  the  contract  was  to  attend  to  it 
in  the  district  court  alone. 

The  books  are  not  destitute  of  cases  and  decisions 
emanating  from  the  best  lights  of  equity  jurisprudence, 
clearly   and    distinctly   showing    that    attorneys    cannot, 


72  SUPREME  COURT  CASES, 

De  Louis  v.  Meek. 

witliout  the  consent  and  authority  of  their  clients,  make 
contracts  or  com2:)romises  which  will  operate  injuriously 
upon  their  interests ;  that  such  acts  do  not  appertain  to 
their  professional  duty  and  responsibility.  Courts  of 
equity  have,  when  a  case  is  j^roperly  presented,  enter- 
tained jiu'isdiction  and  given  relief  for  wrongs  of  this 
description  on  the  ground  of  fraud,  and  will  still  do  so. 

It  is  contended  by  the  defendants  that  leave  should  have 
been  obtained  from  the  court  below  to  file  this  bill,  and 
that  it  therefore  should  not  have  been  entertained.  Where 
a  decree  or  judgment  in  partition,  such  as  the  one  com- 
plained of  here,  is  alleged  to  have  been  obtained  hy  fraud y 
it  may  be  impeached  by  an  original  bill  without  the  leave 
of  the  court,  the  fraud  used  in  obtaining  the  decree 
being  the  principal  point  in  issue,  and  necessary  to  be 
established  by  proof  before  the  propriet}^  of  the  decree  can 
be  questioned.  Mitford's  Ch.  PI.,  p.  138.  And  where  a 
decree  has  been  so  obtained,  the  court  will  restore  the 
parties  to  their  former  situation,  whatever  their  rights 
may  be.  Idem^  p.  130.  And  on  the  same  page,  express 
and  j)ointed  authority  is  given  for  the  entertainment  of 
the  bill  in  this  case.  Mr.  Mitford  says  :  "  AVhen  a  decree 
has  been  made  by  consent,  and  that  consent  has  been  fraud- 
ulently obtained,  the  party  grieved  can  only  be  relieved 
by  an  original  bill."  That  the  remedy  in  such  case  is  by 
an  original  bill,  cannot  with  propriety  be  questioned,  and 
such  is  the  mode  for  relief  where  judgments  at  law  are 
obtained  by  fraud.  Fermor's  case,  2  Coke,  p.  77;  Ander- 
son V.  Anderson,  8  Ohio,  108;  2  Vesey,  135;  3  John.  Ch., 
280;  2  Blackf.,  271  ;  Porter  v.  Moffatt,  Morris,  108. 

It  is  contended  that  the  remedy  of  the  complainants  is 
against  the  attorneys,  if  they  have  appeared  without  autho- 
rity or  acted  improperly,  so  as  to  injure  them  in  making 
the  compromise  and  procuring  the  decree.  Such,  how- 
ever, is  not  the  law  where  their  conduct  is  charged  to  be 
fraudulent.  If  their  conduct  in  procuring  the  compromise 
and  entry  of  the  decree  or  judgment  thereon  be  fraudu- 
lent, the  party  or  client  is  not  bound  by  it,  for  it  is  void 


BURLINGTON,  MAY,  1S49.  73 

De  Louis  v.  Meek. 

in  law,  particularly  if  the  acts  so  performed  were  done  in 
fraudulent  confederation  and  collusion  with  others  who 
stood  in  a  relation  to  the  proceeding  to  be  benefited  there- 
l)y.  Sloo  V.  Ba?ik  of  Illinois,  1  Scam.,  444,  and  note; 
Denton  v.  Nays,  16  John.  Ch.,  296. 

But  it  is  urged,  with  much  api)arent  confidence,  that  tlie 
complainants  here,  and  particularh^  Wright,  are  not  in  ;/ 
condition  to  claim  relief,  for  the  reason  that  they  have  been 
benefited  by  the  compromise  and  decree,  instead  of  being- 
injured.  This  position  is  presented  on  the  view,  that  all 
that  has  been  charged  in  the  bill  be  true  and  sufficient,  in 
point  of  fact  and  law,  to  show  that  fraudulent  claims  were 
allowed,  as  stated  in  the  bill ;  and  that  the  attorneys  who 
acted  for  Wright  in  making  the  compromise  did  so  with- 
out his  knowledge  and  authority. 

The  bill  states  that  the  ''half-breed  tract"  contained 
119,000  acres  of  land,  more  or  less;  that  there  are  but 
thirty-three  or  four  bona  fide  claims,  or  original  titles 
to  shares  of  "half-breeds"  thereto,  under  the  treaty  and 
act  of  Congress ;  and  that  by  the  compromise  or  con- 
sent decree,  the  claims  are  made  to  amount  to  one 
hundred  and  one,  by  the  admission  of  spm'ious  or  fraud- 
ulent titles.  Taking  the  allegations  of  the  bill  to  be  true, 
it  is  clear  that  the  complainants  must  be  injured  by 
diminishing  their  interests  in  the  land,  by  the  increase  of 
the  number  of  claims  or  shares.  The  statement  in  the  bill 
will  make  a  difierence  in  the  amount  and  value  of  the 
interest  of  the  complainants,  in  diminution  of  about  two- 
thirds  of  their  rights.  We  are  of  the  opinion  that  the 
allegations  of  facts  in  the  bill  do  not  show  that  the 
complainants  were  benefited,  but  that  they  have  been 
injured  substantially  and  materially. 

In  this  view  of  the  case,  it  is  urged  that  the  complainant 
Wright,  having  failed  to  appear  in  person  to  take  part  in 
the  making  of  the  compromise,  would  have  been  barred 
from  receiving  any  portion  of  the  land ;  whereas,  by  the 
n])pearance  and  acts  of  the  attorneys  for  him  in  the  trans- 
action, he  was  made  a  ])artici])ant  with  others  Avho  were 
Vol.  II.  6 


74  SUPREML  COURT  CASES, 

De  Louis  v.  Meek. 

admitted  to  the  benefits  of  the  compromise  and  decree. 
To  sustain  this  position  the  statute  of  Iowa,  which  pro- 
vides for  the  partition  of  lands,  is  referred  to.  The  36t]i 
section  of  that  statute  is  cited,  which  provides  that  "  where 
all  the  parties  in  interest  shall  have  heen  notified  to  ap- 
pear and  answer  the  petition,  either  by  the  service  of  the 
summons,  or  by  the  publication  hereinbefore  prescribed, 
the  judgment  aforesaid  shall  be  binding  and  conclusive 
upon  all  persons  whatsoever." 

We  think  it  all-sufficient  on  this  point  to  say,  that  this  , 
statute  must  be  held  to  apply  to  all  proceedings  which 
may  have  been  had,  with  its  legitimate  force  and  effect, 
where  such  proceedings  are  had  bona  fnh ;  but  it  never  Avas 
intended  to  cover  up  proceedings  viala  fide.  Such  a  con- 
struction of  it  would  be  at  variance  with  the  plainest 
principles  of  law  and  justice.  The  purifying  power  of 
equity  jurisprudence  will  not  thus  be  stayed.  To  impute 
to  the -legislature  a  design  to  sanction  fraud  by  solemn 
enactment,  would  reflect  upon  their  integrity.  Fraud 
vitiates  the  most  important  judicial  acts  when  found  to 
exist  in  them,  and  renders  them  void  upon  discovery 
before  the  proper  tribunal. 

If  Wright  had  been  personally  present,  or  if  he  had, 
like  De  Louis,  been  represented  in  making  the  compro- 
mise, still  if  the  petitioners,  or  their  attorneys,  had  acted 
fraudulently,  either  by  misrepresentation  or  concealment, 
so  as  to  deceive  and  injure  them  in  their  rights,  they 
would  be  entitled  to  relief  in  a  court  of  equity. 

The  negligence  of  Wright  is  also  urged  as  a  reason  why 
he  has  no  equitable  claim  to  relief.  There  can  be  no  doubt 
that  this  would  operate  against  his  right  to  the  equitable 
interposition,  if  he  sought  to  be  relieved  from  the  effect 
of  mere  irregularity  in  the  proceedings  of  the  court  in 
making  the  partition,  and  when  he  had  failed  to  be  vigilant 
in  asserting  his  rights.  But  in  this  case  the  bill  charges 
fraud  upon  the  petitioners  and  attorneys,  iii  making  the 
compromise,  and  in  procuring  the  decree  to  be  entered 
and  confirmed,   by  practising  deception  upon  the  court. 


BURLINGTON,  MAY,  1849.  75 

De  Louis  r.  Meek. 

We  have  not  been  able  to  find  any  authority  for  requiring 
a  party  to  be  on  his  guard  against  fraudulent  acts,  by  com- 
bination or  otherwise,  and  on  failure  to  prevent  which,  he 
will  be  held  as  negligent  and  in  default.  The  spirit  of 
tlie  law  moves  in  a  pure  channel,  imparting  life  and  vigor 
to  justice  in  disposing  of  the  rights  of  the  citizen.  A  suitor 
in  couVt,  or  one  whose  interests  are  at  stake  there,  has  an 
indisputable  right  to  legal  protection,  and  to  be  dealt  with 
in  all  fairness.  He  will  be  held  to  suffer  the  legitimate 
effects  of  his  own  negligence,  but  no  more.  Such  is  the 
subtlety  of  fraud,  its  infinitude  of  cliaracter  and  shape,  and 
its  power  of  insinuation,  when  conceived  and  brought  to 
life  and  action,  that  the  most  sacred  and  best  guarded 
citadels  of  right  and  justice  among  men  are  not  always 
safe  from  its  invasion.  Wright  could  not  be  presumed  to 
prevent  the  fraud  by  his  personal  presence  and  attention, 
and  the  law  does  not  recognize  this  answer  to  his  com- 
plaint as  good.  The  bill  avers  that  he  and  De  Louis  and 
wife,  the  complainants,  were  not  in  any  way  participant 
in  the  transaction  upon  which  the  fraud  is  charged.  This 
we  deem  suflicient  on  this  point. 

In  a  bill  of  this  kind  it  cannot  be  successfully  contended 
that  more  is  required  than  to  state  every  material  fact 
upon  which  the  complainants  intend  to  offer  evidence,  dis- 
tinctly and  clearly.  A  general  and  substantial  charge  of 
such  a  fact  is  sufficient.  It  is  not  necessary  to  charge 
minutely  all  the  circumstances  which  may  conduce  to 
prove  the  general  charge ;  these  cu'cumstances  are  for  the 
matter  of  evidence,  which  need  not  be  charged  in  order  to 
let  them  in  as  proofs.  Story's  Eq.  PI.,  p.  24,  §  28;  W/ielan 
V.  WZ/elan,  3  Cowen,  571.  In  6  Howard,  120,  Davis  v. 
Teleston  et  al. ,  Judge  AVoodbury,  in  delivering  the  opinion 
of  the  court,  says  :  ''  The  existence  of  fraud  in  obtaining 
the  original  judgment,  which  is  the  other  ground  assigned 
for  relief,  is  next  to  be  considered.  It  is  not  only  alleged 
generally,  but  in  details,  so  far  as  already  specified  in  this 
opinion  :  a  general  allegation  of  it  in  the  bill  would  have 
been  sufficient,  if  so  certain  as  to  render  the  subject  matter 


76  SUPREME  COURT  CASES, 

De  Louis  v.  Meek. 

of  it  clear."  In  support  of  this  position  lie  cites  the  cases 
of  Nesmith  et  at.  v.  Calvert^  1  Woodbe  &  Minet,  44 ;  Smith 
V.  Burnham^  2  Sumner,  612;  Jenkins  v.  Eldridge,  '3 
Story,  181. 

In  the  case  at  bar  the  substantive  facts  upon  which  fraud 
is  charged  are  so  stated  as,  with  certainty,  to  render  the 
subject  matter  of  the  bill  clear  as  to  the  allegations  therein 
made.  We  therefore  are  of  the  opinion  that  the  court  below 
should  have  overruled  the  demurrer  of  the  defendants  and 
put  them  upon  their  answer  to  the  bill  upon  its  merits. 

In  concluding  our  decision  upon  this  interesting  case, 
we  have  only  to  add,  that  we  have  given  it  a  most  patient 
and  careful  investigation,  commensurate,  we  trust,  with  its 
importance.  We  have  paused,  reflected  maturely,  and 
would  willingly  have  avoided  a  decision  which  may  possibly 
disturb  titles  which  have  become  vested  under  the  decree 
of  partition,  and  open  the  door  for  future  litigation.  Sen- 
sible that  consequences,  weighty  in  their  character,  may 
emanate  from  a  decision  which  will  put  in  issue  the  facts 
charged  in  the  bill,  still  it  is  no  less  the  duty  of  this  court 
to  decide  the  questions  of  law  presented  in  the  elaborate 
arguments  according  to  the  principles  of  equity  jurispru- 
dence. Guided  in  our  determination  by  the  brightest 
judicial  lights  of  the  country,  we  have  endeavored  to  re- 
flect the  law  as  we  find  it  in  the  books.  This  we  consider 
a  duty  for  which  there  is  no  alternative,  and  paramount 
to  consequences  however  to  be  deplored.  Avoiding  any 
intimation  in  relation  to  the  merits  of  the  case,  we  are  of 
the  opinion  that  the  bill  shows  sufficient  equity  on  its  face 
to  put  the  defendants  on  answer.  The  cause  will  there- 
fore be  remanded  to  the  district  com't  of  Lee  county  for 
further  proceedings  to  be  had  not  inconsistent  with  this 
opinion. 

Decree  reversed. 

J.  C,  Hall  and  D,  Rorer,  for  appellants. 

C.  J\faso7i  and  C.  ^Valkcr^  lor  a})pellee. 


BURLINGTON,  MAY,  1849.  77 


Arnold  v.  Grimes. 


AENOLD  V.  GRIMES. 

Ab  a  general  rnle,  courts  of  law  and  of  chancery  have  concurrent  jurisdiction 

in  matters  of  fraud.     Still  in  many  cases  chancery  will  aflbrd  relief  against 

fraud  which  cannot  be  remedied  at  law. 
At  law  fraud  must  be  proved ;  in  equity  it  may  be  presumed. 
A  patent  for  land  from  the  United  States,  cannot  generally  be  impeached 

at  law  for  fraud. 
If  fraud  appears  upon  the  face  of  a  patent,  it  is  rendered  void  at  law;  but 

when  fraud  or  other  defect  arises  dehors  the  grant,  it  is  voidable  only  by 

suit  in  chancery. 
A  pre-emption  certificate  not  evidence  of  legal  title, 
it'  a  patent  is  void  upon  its  face,  or  was  issued  without  authority,  or  if  the 

state  had  no  title,  it  may  be  collaterally  impeached  at  law  ;  but  for  the 

determination  of  all  other  defects,  resort  siiould  be  had  to  a  court  of  equity. 

Error  to  Des  Moines  District  Court. 

Opinion  by  Kinney,  J.  This  was  an  action  of  riglit, 
brought  by  Grimes  against  Ai-nold,  to  recover  the  north- 
east quailer  of  section  36  in  township  70,  north  of  range 
3  west. 

A  bill  of  exceptions  was  taken  on  the  trial  by  Arnold, 
from  which  it  appears  that  Grimes  gave  in  evidence  a 
patent  from  the  United  States,  dated  in  183G,  to  W.  W. 
Chapman  for  the  land  described  in  the  declaration,  and 
also  a  deed  from  Chapman  to  him ;  this,  witli  proof  of 
Arnold's  possession,  constituted  the  testimony  on  the 
part  of  the  defendant  in  error. 

Arnold  then  in  defence  offered  the  record  of  a  petition 
in  chancery,  with  a  decree  of  the  district  court  of  Des 
Moines  county,  and  a  decree  of  affirmance  by  the  supreme 
court  of  Iowa,  in  a  case  in  which  Ai-nold  was  the  com- 
plainant and  said  ChajDman  and  Grimes  were  defendants. 
This  evidence  was  not  admitted.  In  order  to  a  pro^^er 
understanding  of  the  character,  bearing  and  relevancy  of 
the  evidence  proposed,  it  becomes  necessary  to  examine 
the  petition  and  decrees,  in  which  Arnold  sought  to  defeat 
the  fee  simple  title  established  in  Grimes  by  patent  to 


SUPREME  COURT  CASES, 


Arnold  v.  Grimes. 


Chapman,  and  by  deed  from  Chapman  to  him.  It  seems 
that  Arnold,  on  the  15th  day  of  November,  1841,  filed  his 
bill  in  the  district  com't  of  Des  Moines  county,  making 
Chapman  defendant,  setting  out,  among  other  things,  that 
he  settled  upon  the  land  (now  in  controversy)  in  1 835.  That 
he  occupied  it  until  1839,  when  he  applied  to  the  proper 
land  officers  for  a  pre-emption  under  the  act  of  Congress, 
approved  June  22,  1838,  entitled  "  An  act  to  grant  pre- 
emption rights  to  settlers  on  the  public  lands."  That 
Chapman  was  present  at  the  time  an  examination  was  made 
into  his  right  to  a  pre-emption,  and  cross-examined  the 
witnesses.  That  after  a  hearing  of  the  whole  testimony, 
the  land  officers  decided  that  Arnold  was  entitled  to  a  i")rc- 
emption,  and  accordingly  issued  to  him  a  receiver's  receipt 
upon  his  paying  the  purchase  money.  From  this  decision, 
the  land  officers  awarding  the  pre-emption  to  Arnold, 
Chapman  appealed  to  the  commissioner  of  the  general  land 
office.  The  complainant  Arnold  then  sets  out  that  during 
the  summer  and  fall  of  1839,  after  the  appeal  of  Chapman, 
that  Chapman  made  alarming  and  repeated  threats,  that 
unless  complainant  would  convey  to  him  a  i:)ortion  of  the 
laud  so  pre-empted  by  complainant^  that  he,  Chapman, 
would  take  complainant's  life,  and  that,  under  fear  and 
duress,  &c.,  complainant  and  Chapman  arranged  their  diffi- 
culties by  Arnold's  conveying  to  Chapman  twenty-seven 
acres  of  the  land,  and  Chapman  conveying  to  Arnold  forty 
acres  of  other  land.  The  bill  charges,  in  the  most  emphatic 
manner,  that  this  conveyance  was  extorted  from  Arnold, 
the  complainant,  by  Cha])man,  by  reason  of  duress,  fraud 
and  fear  of  personal  violence.  The  bill  then  sets  out,  that 
complainant  again  in  the  summer  of  1840  applied  for  a 
[)re-emption  to  the  same  tract  of  land  under  the  act  of 
Congress,  approved  June,  1840,  entitled  "  An  act  supple- 
mental to  an  act  entitled  an  act  to  grant  pre-emj)tion  rights 
to  settlers  on  the  public  lands,  approved  June  22,  1838." 
Tliat  Chapman  was  notified  of  his  intention  to  make  tha 
application,  and  that  on  the  10th  of  October,  1840,  the 
land  officers  proceeded  to  hear  the  testimony,  and  decided 


BURLINGTON,  MAY,  1849. 


Arnold  v.  Grimes. 


that  complainant  was  entitled  to  a  pre-emption  upon  the 
said  tract  of  land.  A  receiver's  receipt  of  that  date  was 
accordingly  issued  to  him,  Chapman  not  being  present. 
It  is  then  charged  in  the  bill,  that  Chapman  afterwards 
notified  the  commissioner  of  the  general  land  office  that 
he  protested  against  Arnold's  pre-emption,  and  that  to  set 
it  aside  he  forwarded  to  the  secretary  of  the  treasury  of 
the  United  States  the  deed  from  Arnold  to  Chapman  for  a 
part  of  the  same  land,  as  conflicting  with  the  oath  taken 
by  complainant.  That  the  secretary  of  the  treasury  set 
aside  this  last  entry  of  Arnold's  and  retained  the  two 
hundred  dollars  paid  as  purchase  money. 

The  bill,  after  reciting  and  charging  various  acts  of  fraud 
and  duress  on  the  part  of  Chapman,  in  procuring  the  deed 
to  a  portion  of  said  land  for  the  jmrpose  of  iising  it  to 
defeat  the  complainant  in  his  pre-emption  right,  prays  for 
a  cancellation  of  the  deed  from  Arnold  to  Chapman,  upon 
the  ground  of  such  duress  and  fraud. 

Grimes  having  been  made  party,  the  cause  was  tried 
upon  the  original  and  supplemental  bill,  exhibits,  answer 
and  evidence,  whereupon  the  court  found  the  bill  and 
exhibits  true,  and  decreed  a  cancellation  of  the  deed  from 
Arnold  to  Chapman,  conveying  the  twenty-seven  acres 
mentioned  in  the  bill  of  Ainiold,  and  that  said  Chapman 
or  said  Grimes,  if  in  his  j)ossession,  should  deliver  up  said 
deed  to  be  cancelled.  This  decree  was  affirmed  by  the 
supreme  court  as  set  out  in  the  bill  of  exceptions. 

The  defendant  below,  Arnold,  also  offered  to  prove,  in 
connection  with  said  record,  tliat  the  deed  referred  to  in 
said  record,  and  cancelled  by  said  decree,  was  the  deed 
used  by  Chapman  to  set  aside  his  pre-emption  and  entry 
of  said  land,  and  that  aside  from  that  deed  so  set  aside  by 
the  decree,  Arnold's  entry  was  in  all  respects  regular. 
Defendant  also  gave  in  evidence  the  original  certificate  of 
his  pre-emption  purchase  as  set  forth  in  the  record.  The 
plaintiff  below  objected  to  said  record  being  admitted  to 
the  jiuy,  and  the  court  sustained  the  objection,  and  ruled 
that  the  record  andparole  evidence  should  not  be  given  to 


80  SUrREME  COURT  CASES, 

Arnold  v.  Grimes. 

the  jury.  To  tlie  ruling  of  the  court  excluding  this  evi- 
dence the  defendant  excepted,  and  assigns  the  same  for 
error. 

It  wjis  urged  in  the  argument  of  this  cause  by  the  coun- 
sel for  the  plaintiff  in  error :  First,  That  courts  of  law 
and  chancery  have  concurrent  jurisdiction  in  all  cases  of 
fraud ;  and,  Second,  That  the  evidence  was  admissible  to 
show  fraud  on  the  part  of  Cliapman  in  procuring  the 
patent.  As  a  general  rule  the  first  proposition  is  correct, 
although  the  books  are  not  barren  with  exceptions  to  this 
])roposition  in  its  broadest  signification.  While  courts  of 
law  may  have  jurisdiction  in  cases  of  fraud,  it  not  unfre- 
quently  happens,  from  the  very  circumstances  and  natm^e 
of  the  case,  that  such  courts  cannot  exercise  theii*  juris- 
diction to  relieve  against  it. 

Fraud  in  a  court  of  equity  properly  includes  alb  acts, 
omissions  and  concealments  which  involve  a  breach  either 
of  legal  or  equitable  duty,  trust  or  confidence  justly 
reposed,  and  are  injurious  to  another,  or  by  which  an  un- 
due or  unconscientious  advantage  is  taken  of  another. 
Belcher  v.  Belcher,  10  Terger,  121.  "  Courts  of  common 
law  cannot  supply  defects  of  will,  or  rectify  mistakes  in 
written  agreements  or  conveyances.  If  the  end  proposed 
is  lawful,  a  court  of  common  law  only  inquires  what  acts 
of  will  were  really  exerted,  and  the  deed  or  covenant  is 
made  effectual  without  regard  to  consequences.  But  courts 
of  equity  are  more  at  liberty  to  follow  the  dictates  of 
refined  justice.  They  consider  every  deed  in  its  true  light 
as  a  means  employed  to  bring  about  some  event,  and  in 
this  light  they  refuse  to  give  it  force  any  further  than  is 
conducive  to  bring  about  the  proposed  end.  When  from 
any  defect  of  the  common  law,  want  of  foresight  of  any  of 
the  parties,  or  other  mistake  or  accident,  there  would  be 
a  failure  of  justice,  it  is  the  duty  of  a  court  of  equity  to 
interfere  and  supply  the  defect  or  furnish  the  remedy." 
2  Paige,  84.  But  so  far  as  courts  of  common  law  ^can 
exercise  their  jurisdiction  in  cases  of  fraud,  it  may  be  said 
to  be  concurrent  with  the  equity  side  of  the  court.    While 


BURLINGTON,  MAY,  1849.  81 

Arnold  v.  Grimes. 

we  would  not  derogate  in  the  least  from  the  powers  of  a 
court  of  law  to  investigate  fraud,  yet  cases  will  occur  in 
which  chancery  alone  can  afford  relief  Thus  as  one  court 
may  be  limited,  not  in  its  jurisdiction,  hut  in  the  applica- 
tion and  extent  of  it,  the  other  is  unrestricted,  probing, 
collecting  and  relieving  fraud,  however  subtle,  injurious 
or  complicated. 

While  at  law  fraud  must  be  proven,  in  chancery  it  may 
be  presumed.     Adams  on  Ejectment,  467. 

The  interposition  of  the  latter  is  often  necessary  for  the 
better  investigation  of  truth,  and  to  give  more  complete 
pjdress.     3  Blach.  Com.,  431,  437,  439. 

A  variety  of  cases  has  been  decided  and  relief  afforded 
in  equity,  when,  from  the  nature  of  the  transaction  and 
the  situation  of  the  parties,  fraud  and  imposition  might  be 
presumed.     3  P.  W.,  139;  Pow.  on  Con.,  21 ;  8  Con.,  370. 

Early  in  the  history  of  jurisprudence,  the  administration 
of  justice  in  the  ordinary  com'ts  was  found  to  be  incom- 
plete, and  hence  arose  the  necessity  of  separate  courts  of 
equity,  which  were  organized  about  the  end  of  the  reign 
of  King  Edward  III.,  for  the  purpose  of  correcting  that 
wherein  the  law  was  defective,  and  matters  of  fraud  were 
among  the  chief  branches  to  which  the  jurisdiction  of  chan- 
cery was  originally  confined.  Soon  after  separate  courts 
of  equity  were  established  in  England,  a  fierce  struggle 
arose  between  the  law  and  equity  courts  in  relation  to  the 
jurisdiction  and  powers  of  each  ;  but  as  we  trace  the  his- 
tory of  English  jurisprudence,  we  find  the  prejudice  which 
at  first  existed  on  the  part  of  the  common  law  courts 
yielding  to  the  necessity  and  utility  of  a  distinctive  equity 
jurisprudence. 

Still  even  at  the  present  day,  it  becomes  sometimes  a 
serious  question  to  ascertain  to  what  extent  courts  of  law 
and  chancery  have  concm-rent  jurisdiction  in  cases  of  fraud. 
The  case  at  bar  presents  a  forcible  illustration  of  this  fjict. 
Evidence  was  offered  in  the  court  below  by  the  defendants, 
which  was  claimed  in  the  argument  would  have  shown 
that  the  patent  to  Chapman  was  obtained  by  fraud.     This 


82  SUPHEME  COURT  CASES, 

Arnold  v.  Grimes. 

evidence  was  ruled  by  the  court  to  be  inadmissible;  and 
as  we  think  very  correctly,  because,  as  a  general  rule  (and 
the  patent  in  this  case  does  not  fall  within  the  exception), 
a  patent  cannot  be  impeached  in  a  court  of  law  for  fraud. 
This  question  underwent  an  able  investigation  in  the 
supreme  court  of  Xew  York  in  the  case  of  Jackson  v.  1  aw- 
ton,  10  John.,  22. 

That  case  was  an  action  of  ejectment,  in  which  the 
plaintiff  in  the  court  below  gave  in  evidence  letters  jxJ^tent 
dated  28th  October,  1812.  The  defendant  offered  in  evidence 
a  patent  for  the  same,  but  dated  5th  March,  1812,  which 
was  objected  to  on  the  ground  that  it  was  subsequent  to 
the  patent  to  the-lessor,  and  that  the  recitals  it  contained, 
and  the  allegations  of  mistake  in  issuing  the  prior  letters 
patent,  could  not  be  inquired  into  in  an  action  at  law.  He 
also  offered  parole  evidence  of  payment  in  full  for  the  lot. 

The  decision  of  the  court  in  excluding  this  evidence 
was  fully  sustained  by  the  supreme  court,  and  Chief  Jus- 
tice Kent,  in  delivering  the  oi)inion,  says: — 

"  It  has  been  the  uniform  practice  in  our  courts,  in  all 
questions  of  title,  to  look  to  the  elder  patent  and  give  it 
effect.  Nor  can  the  court  take  notice  of  any  equitable 
claim  upon  the  general  government  which  a  third  person 
might  have  in  respect  to  lands  in  question  prior  to  issuing 
the  patent.  We  can  only  look  to  the  title  under  the  great 
seal,  and  so  the  law  was  declared  in  the  case  of  Jackson 
V.  Ingraham,  4  John.,  163.  The  elder  patent  must  there- 
fore be  impeached  and  set  aside,  before  we  can  acknow- 
ledge any  title  set  up  under  a  younger  patent ;  and  the 
question  is  whether  it  could  be  impeached  by  parole  proof 
in  this  suit."  If  the  elder  patent  was  issued  by  mistake, 
or  upon  false  suggestions,  it  is  voidable  only;  and  unless 
letters  patent  are  absolutely  void  upon  the  face  of  them, 
or  the  issuing  of  them  was  without  authority,  or  was 
prohibited  by  statute,  they  can  only  be  avoided  in  a  regu- 
lar course  of  pleading  in  which  the  fraud,  irregularity  or 
mistake  is  directly  put  in  issue.  The  principle  has  been 
frequently  admitted  that  the  fraud  must  appear  on  the  face 


BURLINGTON,  MAY,  1849. 


Arnold  v.  Grimes. 


of  the  patent  to  render  it  void  in  a  court  of  law,  and  that 
when  the  fraud  or  other  defect  arises  on  circumstances 
dehors  the  grant,  it  is  Avoidable  only  by  suit.  1  H.  &  M., 
187,  190;  1  Mumf.,  134. 

The  regular  tribunal  for  this  purpose  is  chancery,  founded 
on  a  proceeding  by  scirie  facias^  or  by  bill,  or  by  infor- 
mation. It  would  be  against  precedent,  and  of  dangerous 
consequence  to  title,  to  permit  letters  patent,  which  are 
solemn  grants  of  record,  to  be  impeached  collaterally  by 
parole  proof  in  this  action. 

In  Jackson  v.  Lawton^  the  plaintiff  in  error  had  a  much 
stronger  case  than  the  plaintiff  here.  In  that  case,  he  held 
a  junior  patent  containing  recitals  and  allegations  of  mis- 
take concerning  the  issuing  of  the  senior  patent,  and  yet 
the  allegations  of  mistake  could  not  be  inquired  into  at 
law.  Parole  proof  could  not  be  admitted  to  show  payment. 
To  investigate  and  settle  all  these  questions  he  was  forced 
to  resort  to  a  com-t  of  equity.  In  this  case  Ai-nold  merely 
held  a  pre-emption  certificate,  which  is  not  evidence  of 
legal  title,  but  an  incipient  step  in  the  progress  to  title. 
Possessing  but  an  equitable  interest,  he  attemjjted  to  in- 
troduce evidence,  not  of  fraud  in  Chapman  in  obtaining 
the  patent,  but  fraud  in  him  in  procuring  a  deed  by  which 
Arnold  was  defeated  in  his  pre-emption.  But  if  the  evi- 
dence offered  hud  a  tendency  to  show  fraud  in  procuring 
the  patent,  as  was  claimed  in  the  argument,  it  was  properly 
rejected,  for  according  to  the  decisions  of  the  supreme 
court  of  the  United  States,  it  was  not  admissible  for  that 
purpose.  Stringer  et  al.  v.  Young,  3  Peters,  320 ;  Polk 
V.  Wendall  et  al.,  9  Cranch,  87;  5  Wheat.,  293;  Board- 
man  et  al.  v.  Reid,  6  Peters,  328  ;  Bangel  et  al.  v.  Bro- 
deriek,  13  Peters,  436;  ^V^lcox  v.  Jackson,  13  Peters, 
498;  Patterson  v.  Winn,  11  Wheat.,  380. 

In  this  case,  the  law,  a^  laid  down  by  Chief  Justice 
Kent  in  the  case  of  Jackson  v.  Lawton,  was  not  only  re- 
cognized as  correct,  but  adopted  by  the  supreme  com't  as 
the  established  and  settled  doctrine.  The  court  take  occa- 
sion to  speak  of  the  various  decisions  which  have  pre- 


84  SUPREME  COURT  CASES, 

Arnold  v.  Grimes. 

vailed  in  tlie  state  courts,  in  relation  to  the  extent  that  a 
court  of  law  will  go  in  permitting  patents  to  be  collaterally 
impeached,  and  while  they  have  diifered,  some  courts  hold- 
ing that  the  patent  is  only  prima  facie  evidence  of  title, 
and  open  to  extrinsic  evidence  to  impeach  its  validity,  and 
others  that  the  defects  must  appear  upon  the  face  of  the 
patent  to  authorize  a  court  of  law  to  pronounce  it  invalid, 
and  that  unless  it  do  so  appear,  the  patent  is  only  violable, 
and  recourse  must  be  had  to  chancery.  The  court  dis- 
poses of  all  these  various  decisions,  by  saying  that  the 
question  was  settled  by  the  supreme  court  in  the  case  of 
Folk  V.  Wendall,  9  Cranch,  87.  If  any  different  doctrine 
than  that  laid  down  in  the  case  of  Patterson  v.  Winn 
has  obtained  in  the  supreme  court,  we  think  it  will  be 
found  to  have  grown  out  of  a  construction  which  the  state 
com'ts  had  given  to  their  particular  laws,  which  the 
supreme  court  Avill  follow,  especially  when  made  in  the 
state  courts  respecting  title  to  land.  For  instance,  in 
Tennesee  the  courts  of  law  allow  the  parties  in  ejectment 
to  go  back  to  the  original  entry  and  connect  the  patent 
with  it.  This  rule  is  founded  on  the  land  laws  of  North 
Carolina,  which  have  been  construed  in  Tennessee  to  per- 
mit and  require  it.  Blunt  v.  Smith  et  al.^  7  Wheat.,  275. 
The  case  of  Swayzie  v.  Burkl  et  al.^  12  Peters,  12, 
referred  to  by  the  counsel  for  the  plaintiff  in  error,  was  a 
case  that  went  up  to  the  supreme  court  from  the  district 
of  Pennsylvania,  where  they  have  no  court  of  equity,  and 
consequently  a  different  rule  prevails  necessarily,  than  in 
those  states  where  equity  is  administered  by  courts  of  chan- 
cery. Stoddard  et  al.  v.  Chambers^  2  How.,  285,  also  re- 
ferred to  by  the  counsel  for  the  plaintiff  in  error,  was  a 
case  in  which  the  holder  of  a  New  Madrid  certificate  hav- 
ing a  right  to  locate  it  only  on  public  lands  which  had 
been  authorized  to  be  sold,  located  it  on  lands  which  were 
reserved  from  sale  at  the  time  of  issuing  the  patent,  and 
it  was  consequently  declared  void.  We  do  not  understand 
that  case  as  deciding  more  than  this  :  As  the  location  was 
made  upon  lands  expressly  reserved,  no  title  could  pass, 


BURLINGTON,  MAY,  1849.  85 

Ainold  V.  Grimes. 

niul  the  patent  wa"  void,  and  tliat  a  title  acquired  against 
law  was  examinable  in  a  court  of  law.  This  does  not  con- 
flict with  the  opinion  of  Chief  Jut^tice  Kent  in  the  case  of 
Jackson  V.  Lawton,  and  with  the  case  o^ Patterson  v.  Winn, 
and  others  cited.  After  a  careful  examination  of  all  the 
authorities  bearing  upon  the  question,  called  upon  as  we 
are  for  the  first  time  to  declare  the  law  upon  this  subject, 
we  unhesitatingly  adopt  the  language  of  the  supreme  court 
in  the  case  of  Patterson  v.  Winn,  "  That  if  a  patent  is 
absolutely  void  upon  its  face,  or  the  issuing  thereof  was 
without  authority,  or  was  prohibited  by  statute,  or  the 
state  had  not  title,  it  may  be  impeached  collaterally  in  a 
court  of  law  in  an  action  of  ejectment ;  "  but  that,  for  the 
investigation  of  all  other  questions,  a  cornet  of  equity  is 
the  more  eligible  tribunal,  and  they  ought  to  be  excluded 
from  a  court  of  law. 

We  do  not  find  anything  in  the  authorities  referred  to 
by  counsel  for  the  plaintiff  in  error,  when  properly  under- 
stood, as  opposed  materially  to  those  decisions  which 
have  influenced  us  in  comin":  to  our  conclusion.  Mucli 
was  said  at  bar  in  relation  to  tbe  case  of  Stoddard  \. 
Chambers.  We  cannot  think  the  points  decided  in  tluit 
case  as  conflicting  at  all  with  the  great  cm-rent  of  authui-- 
ity  upon  this  subject. 

The  case  Avent  up  upon  instructions  to  the  jury  in  rela- 
tion to  a  conflict  of  title.  We  have  examined  the  argu- 
ments of  counsel  and  the  case  at  length,  and  have  not  been 
able  to  find  that  the  question  of  fraud  was  in  the  case  at 
all,  and  yet  the  learned  Judge  who  pronounced  the  deci- 
sion takes  occasion  to  express  an  opinion  in  relation  to 
patents  obtained  by  fraud,  in  a  manner  which  does  not 
api)arently  harmonize  very  well  with  the  repeated  deci- 
sions of  tlie  supreme  court.  The  evidence  in  this  case, 
therefore,  was  properly  excluded.  The  facts  set  up  in  the 
defence,  are  all  examinable  in  a  court  of  equity.  To  that 
forum,  if  fraud  has  been  perpetrated,  the  plaintiff  in  error 
can  resort.  The  door  of  equity  is  always  open  to  all  en- 
titled to  relief.     There  fraud  maybe  corrected,  and  justice 


86  SUPREME  COURT  CASES, 

Wright  V.  Clark. 

administered.  As  it  is  not  im]3robable  tliat  this  case  may 
come  before  the  com"t  in  chancer}^,  we  have  not  thought  it 
proper  or  necessary  to  jjass  upon  the  relevancy  of  the 
testimony  offered,  nor  upon  the  position  assumed  in  the 
argument  in  relation  to  Arnold's  equitable  title.  The  case 
must  be  affirmed  upon  the  ground  that  the  patent  was  not 
impeachable  in  this  action  collaterally  for  fraud,  and  there- 
fore the  evidence  was  correctly  excluded. 

Judgment  affirmed. 

D.  Rorer  and  J.  C.  Hall,  for  plaintiff  in  error. 

H,  W,  Starr,  for  defendant. 


WRIGHT  V.  CLARK. 

A  motion  for  a  continuance,  on  the  ground  of  absent  papers,  taken  by  the 
attorney  of  tiie  party  applying,'  for  the  continuance,  was  correctly  refiised, 

When  default  is  made  ))}•  the  applicant,  the  judgment  of  a  justice  of  the 
peace  may  be  affirmed  in  the  district  court. 

Error  to  Lee  District  Court. 

Opinion  by  Greene,  J.  This  suit  was  commenced  be- 
fore a  justice  of  the  peace,  and  taken  by  appeal  to  the 
district  court,  where  the  judgment  of  the  justice  was 
affirmed.  We  learn  from  the  bill  of  exceptions,  that  the 
appellants  moved  the  court  for  a  continuance,  and  assigned 
for  cause  the  absence  of  papers,  wliich  it  appears  had  been 
previously  taken  from  the  court  by  tlieir  attorney,  and  had 
not  been  returned.  The  neglect  of  their  own  attorney,  a 
delinquency  which  they  had  been  instninientnl  in  produc- 
ing, cannot  be  considered  good  ground  for  a  continuance. 
We  therefore  think  that  Iheir  application  was  correctly 
overruled. 

Objections  are  urged  to  tlie  ju:^.gnient  of  affirmance.      It 


BURLINGTON,  MAY,  1849.  87 

Wright  V.  Clark. 

is  contended  that  there  should  have  been  a  trial  de  novo 
in  the  district  court.  But  it  appears  by  the  bill  of  excep- 
tions, that  the  judgment  of  the  justice  was  not  affii'med 
until  after  the  appellants  declined  taking  any  fui'ther 
action  in  the  matter.  They  thus  abandoned  their  appeal, 
and  in  effect  waived  further  objection  to  the  judgment  of 
the  justice.  Such  default  in  the  appellants  fully  justified 
the  judgment  of  affirmance.  That  an  affirmance  is  sanc- 
tioned by  statute  in  such  appeal  cases  sufficiently  appears 
by  the  article  regulating  appeals.  Rev.  Stat.,  833.  Sec- 
tions 2,  3,  and  16  expressly  recognize  this  practice  in  the 
district  court.  By  tliese  sections  two  distinct  methods 
are  provided  by  which  such  appeals  may  be  disposed  of. 
1.  By  an  affirmance  of  the  judgment.  2.  By  a  trial  anew. 
Many  cases  are  taken  to  the  district  court  for  the  jjur- 
pose  of  delay,  without  even  the  expectation  of  disturbing 
the  judgment  of  the  justice,  and  in  such  cases  it  would  be 
a  useless  expense  to  parties,  a  futile  detention  in  the  ad- 
ministration of  justice,  for  courts  to  award  a  trial  de  novo. 
Hence,  where  defjiult  is  made  by  the  appellant,  it  would  be 
fallacious  to  adopt  that  practice,  even  if  the  statute  ad- 
mitted of  doubt  in  its  construction.  But  we  think  the 
statute  leaves  no  room  for  doubt,  and  that  it  expressly 
authorizes  the  course  pursued  by  the  court  below  in  this 
case. 

Judgment  affirmed. 

J.  C.  Hall,  for  plaintiff  in  error. 
L.  R.  Reeves,  for  defendant. 


88  SUPREME  COURT  CASES, 

Fletcher  v.  Conly. 


FLETCHER  v.  CONLY. 

Not  necessary  to  prove  the  identity  of  the  drawee  of  an  order  before  it  ia 

offered  in  evidence. 
The  acceptor  of  an  order  becomes  liable  to  the  payee  named  in  the  order, 

and  a  mere  technical  variance  will  not  defeat  his  liability. 
Judgment  may  be  rendered  against  t'he  security  in  an  appeal  bond  from  a 
,    justice  of  the  peace. 

Error  to  Des  Moines  District  Court. 

Opinion  by  Williams,  C.  J.  William  Conly,  for  the 
use  of  Barton  T.  David,  commenced  his  suit  against  the 
defendant,  John  C.  Fletcher,  before  a  justice  of  the  peace. 
The  instrument  of  writing  on  which  the  action  is  founded 
is  an  order  drawn  by  A.  H.  Judd  in  favor  of  William 
Conly,  clerk  of  the  steamer  "Amaranth,"  for  the  sum  of 
$42,  on  John  C.  Fletcher,  the  defendant.  The  order  bears 
date  May  9,  1842,  at  St  Louis,  and  was  given  to  pay  that 
amount  as  money  due  to  the  boat  from  the  Marine  com- 
pany. The  order  was  presented  to  Fletcher,  and  "  Ac- 
cepted June  13,  1842,  J.  C.  Fletcher."  A  credit  is 
endorsed  on  the  order  for  $9,  of  the  same  date  with  the 
acceptance.  The  parties  appeared  before  the  justice  on 
the  day  appointed  for  the  hearing,  with  counsel,  the  cause 
was  tried,  and  judgment  rendered  by  the  justice  against 
the  defendant  for  the  sum  of  $43.56,  debt  and  interest, 
with  costs  of  suit. 

The  trial  was  had  before  the  justice  on  the  ICtli  of  Oc- 
tober, 1847  ;  on  the  1st  of  November^  1847,  the  defendant, 
with  R.  S.  Adams,  who  was  offered  as  his  security  for  the 
purpose,  took  his  appeal  to  the  district  court.  The  bond 
on  file  with  the  record  of  the  case,  however,  which  was 
executed  on  taking  the  appeal,  shows  that  instead  of  R. 
S.  Adams  becoming  security  for  tlie  defendant,  Charles 
W.  HunI  executed  it  with  him  as  his  bail.  The  cause  was 
tried  on  the  appeal  at  the  April  term,  1848,  at  Burlington, 


BURLINGTON,  MAY,  1849.  89 


Fletcher  v.  Conlv. 


and  a  verdict  and  judgment  thereon  rendered  against  the 
deteudaut,  and  Charles  W.  Hunt,  his  bail  on  the  appeal, 
tor  the  sum  of  $44.50,  with  costs  of  suit. 

As  to  the  plaintiff's  right  to  recover,  several  questions 
were  raised  by  defendant's  counsel  in  the  court  below, 
and  adjudicated.  In  deciding  these,  it  is  contended  by 
defendant's  counsel,  that  there  is  error  in  the  proceed- 
ings of  that  com't.  The  cause  is  here  on  writ  of  error, 
and  the  reversal  of  the  judgment  is  urged  on  the  following 
assignments  : 

1.  The  court  erred  in  admitting  in  evidence  to  the  jury 
the  original  order  and  acceptance  referred  to  in  the  bill  of 
exceptions,  in  manner  and  form  as  stated  therein. 

2.  In  ruling  out  from  the  jury  the  evidence  of  defendant 
proving  the  name  of  the  person  referred  to  in  said  order. 

8.  In  rendering  final  judgment  against  said  Hunt. 

The  bill  of  exceptions  shows  that  the  defendant's  counsel 
objected  to  the  reading  of  the  order  in  evidence  to  the  jury, 
on  the  ground  that  before  this  was  done  it  was  necessary 
the  plaintiff  should  give  some  evidence,  by  which  to  show 
his  identity  with  the  drawee  of  the  order.  Tliis  objection 
was  overruled  by  the  court,  and  the  order  was  permitted  to 
go  in  evidence  to  the  jury. 

We  cannot  discover  anything  erroneous  in  this  ruling  of 
the  court.  It  has  been  heretofore  decided  by  this  court, 
that  the  holder  or  promissee  of  a  promissory  note  may 
bring  his  suit  against  the  promisor  and  recover  judgment 
in  the  name  which  is  given  to  him  by  the  maker  of  the 
instrument,  when  he  executes  it.  And  this  is  in  accord- 
ance with  the  sound  principles  of  justice.  By  allowing 
him  to  resist  a  recovery  for  this,  he  would  be  deriving  an 
advantage  from  his  own  wrong. 

The  acceptance  of  the  order  by  Fletcher  the  defendant, 
rendered  him  liable  to  the  plaintiff  Conly,  for  the  amount 
called  for  by  it.  It  was  tantamount  to  a  promise  to  pay  it 
to  him  as  payee,  and  no  further  evidence  for  the  purpose  of 
identifying  Conly  as  the  payee  was  necessary.  The  order, 
])roperly  accepted,  was  there  for  the  jury  in  the  case,  pro- 
VoL.  II.  "  7 


00  SUPREME  COURT  CASES, 

Fletcher  v.  Conlj'. 

duced  by  the  plaintiff  on  the  trial,  and  a  recovery  on  it 
would  bar  a  future  action  for  the  same  indebtedness.  This 
was  all-sufficient  for  the  security  of  the  defendant. 

After  the  order  and  acceptance  had  been  read  in  evi- 
dence to  the  jury,  the  plaintiff  rested  his  case.  The  de- 
fendant then  offered  a  sworn  witness  to  prove  that  the 
person  referred  to  in  said  order  is  named  Conolly  and 
not  Conly.  This  evidence  was  ruled  out  by  the  court,  and 
this  ruling  is  complained  of  as  error,  on  the  ground  of 
variance. 

The  order  being  before  the  jury,  and  the  identity  of  the 
plaintiff  established  for  all  legal  purposes,  so  as  to  protect 
the  interests  of  the  parties  to  the  action,  we  are  of  opinion 
that  the  evidence  could  have  no  legitimate  bearing  on  the 
case,  as  it  then  was,  on  the  part  of  plaintiff,  submitted  to 
the  jury  on  the  instrument  itself,  without  objection  being 
previously  made.  To  avail  himself  of  this  objection,  on 
the  ground  of  variance,  the  defendant  should  have  moved 
it  to  the  court  when  the  instrument  was  offered  in  evidence, 
before  it  had  been  read  to  the  jury,  and  before  the  plaintiff 
had  closed  his  part  of  the  testimony.  A  practice  different 
from  that  here  enjoined  would  tend  to  confusion  and 
privation  of  right.  By  permitting  the  order  to  go  in 
evidence  to  the  jury  as  he  did,  the  defendant  waived  and 
k;s,t  the  benefit  of  this  objection.  He  could  not  thus,  when 
he  iiad  recognized  the  legal  position  of  the  plaintiff  in  the 
action,  introduce  his  testimony  to  resist  a  recovery  against 
him  on  a  point  so  technical. 

In  deciding  this  point,  we  remark  also,  that  on  examina- 
tion of  the  name,  as  written  in  the  instrument,  it  is  ex- 
tremely difficult  to  say  whether  it  is  to  be  read  "  Conolly  " 
or  "  Conly."  Which  of  them  it  may  be  is  immaterial,  as 
we  are  of  the  opinion,  as  to  their  pronunciation,  that  the 
principle  of  idem  sonaiis  may  with  propriety  be  applied. 

The  last  assignment  of  error  is  fully  answered  by  the 
record.  The  judgment  of  the  com"t  below  is  in  perfect 
accordance  with  the  requirement  of  the  statute,  which 
authorized  judgment  to  be  entered  upon  an  affirmance, 


BURLINGTON,  MAY,  1849.  91 


Steamboat  "  Lake  of  the  Woods"  v.  Shaw, 


against  the  security  as  well  as  the  defendant  in  the  action. 
Tlie  appeal  bond  of  record  in  the  case  shows  that  Charles 
W.  Hunt  executed  it  as  the  security  of  the  defendant 
Fletcher. 


Judgment  aflfirmed. 


D.  Rorer^  for  plaintiff  in  error. 
M.  D.  Browning  J  for  defendant. 


>  •  >  » « — 


STEAMBOAT  "LAKE  OF  THE  WOODS"  v.   SHAW. 

An  instrument  not  under  seal  is  not  a  bond. 

Where  an  appeal  is  allowed  under  a  special  statute,  without  a  bond  as 
required,  it  is  not  error  to  dismiss  the  appeal.  But  if  a  recognizance  had 
been  filed  as  authorized  by  a  subsequent  general  statute,  the  appeal  should 
not  be  dismissed. 

Error  to  Lee  District  Court. 

Opinion  by  Kinney,  J.  This  was  an  action  instituted 
before  a  justice  of  the  peace,  under  the  "  Act  to  provide 
for  the  collection  of  demands  against  boats  and  vessels." 
A  judgment  was  rendered  by  the  justice  agninst  the  boat, 
whereupon  the  defendant  appealed  to  the  district  court. 
In  perfecting  his  appeal  he  filed  an  instrument  (not  under 
seal)  with  approved  security,  which  is  designated  by  the 
justice  as  an  appeal  bond.  Upon  the  case  being  trans- 
ferred to  the  district  court,  a  motion  was  filed  by  counsel 
for  the  appellee  to  dismiss  the  appeal,  for  the  reason  that 
the  instrument  purporting  to  be  an  appeal  bond  was  not 
such  an  one  as  was  required  by  statute.  This  motion  was 
sustained  by  the  com-c  and  the  appeal  was  dismissed. 

By  the  bill  of  exceptions  the  only  question  presented  for 
our  decision  is,  did  the  court  err  in  dismissing  the  appeal, 
or  wa,s  there  a  substantial  compliance  with  the  statute  by 


92  SUPREME  COURT  CASES, 

Steamboat  "  Lake  of  the  Woods"  v.  Shaw. 

the  plaintiff  in  filino^  his  security  before  the  justice  of  the 
peace  for  an  appeal  ? 

The  statute  upon  which  this  suit  was  predicated  pro- 
vides, that  in  all  cases  arising  under  the  "  act,  if  judgment 
shall  have  been  rendered  in  favor  of  the  plaintiff,  the 
master,  owner,  agent,  or  consignee  of  the  boat  or  vessel, 
or  other  person  interested,  may  appeal  from  the  judgment 
by  giving  bond  and  security  in  double  the  amount  sued 
for,"  &c.     Rev.  Stat.,  103,  §  20. 

This  statute  clearly  requires  that  the  appealing  party 
shall  file  with  the  justice  of  the  peace  a  bond^  if  he  wishes 
to  avail  himself  of  the  benefit  of  an  appeal.  And  it  is  not 
to  be  presumed  that  the  legislature,  in  using  the  word  bond^ 
intended  anytliing  else  than  such  an  instrument  as  was  a 
bond  at  common  law,  to  wit,  an  instrument  under  seal. 
If  this  statute,  then,  were  to  be  taken  and  construed  inde- 
pendent of  other  statutes,  and  without  reference  to  subse- 
quent legislation,  (as  the  instrument  in  this  case  was  not 
under  seal,)  there  would  be  no  reason  for  legal  ambiguity, 
and  we  could  come  to  no  other  conclusion  than  that  the 
court  below  was  right  in  dismissing  the  appeal. 

Although  "this  statute  was  made  for  a  particular  and 
specific  purpose,  as  it  is  remedial  in  its  character,  it  must  be 
tahen  in  connection  with  subsequent  statutes,  particularly 
those  defining  the  powers  and  duties  of  justices  of  the 
peace,  and  the  way  and  manner  of  taking  appeals  to  the 
district  court.  A  remedial  statute  ought  always  to  receive 
a  liberal  contstruction,  and  it  should  be,  as  it  is,  the  tendency 
of  modern  decisions,  to  aid  as  far  as  possible  the  remedy 
provided  by  law.  Particularly  will  the  courts  extend  a 
favorable  ear  to  those  who  seek  by  appeal  to  obtain  thjit 
justice  which  they  may  have  been  legally  entitled  to,  and 
of  which  they  may  have  been  dej^rived  by  an  erroneous 
decision  of  an  inferior  tribunal.  While  parties  in  appeal- 
ing their  cases  ought  to  be  held  to  the  requirements  of  the 
law,  yet  courts  sliould  reluctantly  close  their  doors  against 
those  ^\llO  have  substantially  complied  with  the  statute. 
And  this  appears  to  be  not  only  the  spirit,  but  the  settled 


BURLIKGTON,  MAY,  1849.  '     93 

Steamboat  "  Lake  of  the  ^Yoof^s"  v.  Shaw. 

policy  of  our  law.  Rev.  Stat.,  335,  §  7,  provides,  that  "  upon 
the  retiu'n  of  the  justice  being-  filed  in  the  clerk's  office, 
the  court  shall  be  possessed  of  the  cause,  and  shall  proceed 
to  liear,  try  and  determine  the  same  anew,  without  regarding 
any  error,  defect  or  other  imperfection  in  the  proceedings  of 
the  justice."  Other  sections  of  the  statute  might  be  quoted, 
by  which  it  would  seem  that  the  legislature  intended  to 
extend  to  parties  seeking  an  appeal  great  latitude. 

The  11th  section  of  the  same  act  provides,  that  no  appeal 
allowed  by  a  justice  shall  be  dismissed  for  the  want  of  a 
recognizance,  or  by  reason  of  a  defective  one,  if  the  appel- 
lant will,  before  the  motion  to  dismiss  is  determined,  enter 
into  a  proper  recognizance,  &c.,  before  the  court :  extend- 
ing, as  this  statute  does,  every  reasonable  facility  to  those 
who  wish  to  have  their  legal  rights  adjudicated  in  the 
higher  court.  But  in  this  case,  it  is  urged  by  counsel  for 
the  defendnnt  in  error,  that  notwithstanding  this  liberal 
language  of  the  statute,  as  this  was  a  proceeding  under  a 
particular  statute  designating  the  instrument  of  security 
to  the  opposite  party  as  a  bond,  that  the  court  did  not  err 
in  dismissing  the  appeal. 

In  the  absence  of  any  statute  subsequent  to  the  one 
relied  upon,  this  position  would  be  correct.  But  a  statute 
passed  much  later  than  the  one  in  relation  to  proceedings 
against  boats  and  vessels,  expressly  states,  that  aivj  person 
aggrieved  by  any  judgment  or  decision  of  a  justice  of  the 
peace,  may  take  his  appeal  to  the  district  court.  He  is 
required  to  comply  with  certain  conditions,  and,  among 
others,  he  shall  enter  into  a  recognizance,  which  shall  Le 
according  to  the  form  laid  down  in  the  statute.  Rev. 
Stat.,  333,  §  34. 

In  this  case  the  recognizance  was  given  under  this 
statute,  and  according  to  its  provisions. 

The  statute,  therefore,  having  been  passed  long  subse- 
quent to  the  one  requiring  a  bond,  aiid  its  language  being 
sufficiently  comprehensive  to  embrace  every  person  taking 
an  appeal  from  any  judgment  or  decision  of  a  justice,  and 
pointing  out  as  it  does  that  such  appeal  shall  be  by  recog- 


94  SUPREME  COURT  CASES, 


Wright  V.  Marsh,  Lee  &  Delavan. 


nizance,  we  find  no  difficulty  in  coming  to  the  conclusion 
that  a  sealed  instrument  was  not  necessary  in  this  case  for 
the  purposes  of  an  appeal. 

The  court  erred  in  dismissing  the  appeal. 

Judo^ment  reversed. 


J.  C.  Hall,  for  plaintiff  in  error. 
J.  W.  Rankin,  for  defendant. 


WRIGHT  V.  MARSH,  LEE  &  DELAYAN. 

By  an  act  of  Congress,  approved  June  30,  1834,  the  qualified  interest  held 
by  the  half-breeds  of  the  Sac  and  Fox  Indians  to  the  half-breed  tract  in 
Lee  county,  was  converted  into  an  absolute  estate. 

Records  of  the  territorial  district  courts  of  Iowa,  not  to  be  considered  as 
foreign  in  the  state  courts  of  Iowa. 

The  Iowa  territorial  district  courts  were  not  of  inferior  jurisdiction.  They 
were  invested  with  the  same  jurisdiction  of  a  federal  character  as  the 
circuit  and  district  courts  of  the  United  States,  and  also  the  general 
common  law  jurisdiction  usually  imparted  to  state  courts  of  record. 

If  the  district  court  in  partition  proceedings  was  only  authorized  to  act 
under  the  special  authoritj-  conferred  by  statute,  the  jurisdiction  would  be 
quoad  hoc  limited  and  inferior. 

Courts  of  equity  may  exercise  general  concurrent  jurisdiction  with  courts  of 
law  i.i  all  partition  cases  at  common  law. 

The  territorial  district  courts,  independent  of  the  partition  act,  had  general 
jurisdiction  of  partition  proceedings  both  at  law  and  in  equity. 

Principles  of  lavv  and  equity  are  united  and  applied  by  tiie  partition  act  of 
Iowa. 

In  partition  proceedings  the  jurisdiction  of  the  district  court  is  threefold: 
1.  Cumulative  and  special  as  created  by  statute.  2.  Having  full  chnncery 
attributes,  except  as  otherwise  provided  by  the  act.  3.  General  common 
law  authority,  so  far  as  it  could  be  exercised  witli  the  two  preceding  powers. 

The  jurisdiction  of  a  court  can  be  taken  away  only  by  express  words. 

Where  the  petition  contained  all  the  allegations  necessary  to  confer  juris- 
diction, but  omits  to  describe  the  interest  of  unknown  owners,  the  defect 
cannot  be  collaterally  assailed. 

The  petition  for  partition  may  be  verified  by  the  affidavit  of  an  attorney. 


BURLINaiON,  MAY,  1849.  95 


Wright  V.  JIarsh,  Lee  &  Delavan. 


Objection  to  the  sufBciency  of  publication  of  notice,  cannot  be  taken  advan- 
tage of  collaterally. 

Not  necessary  to  incorporate  a  copy  of  notice,  or  proof  of  publication,  in  a 
record  from  a  court  of  general  jurisdiction ;  and  if  not  so  incorporated, 
they  will  be  presumed  sufficient. 

A  slight  deviation  by  commissioners,  where  it  is  necessary  to  an  equitable 
partition  of  the  property,  is  not  fatal  to  the  proceedings. 

The  final  judgment  of  partition  may  properly  correct  any  erroneous  com- 
putation or  inr.ccuracy  in  the  report  of  the  commissioners. 

A  partition  of  real  property  under  the  statute  is  made  complete  by  the 
judgment  without  conveyances. 

In  a  court  of  general  jurisdiction,  authority  will  be  presumed  until  the  con- 
trary clearly  appears. 

Where  the  record  of  a  final  judgment  shows  that  the  subject  matter  and  the 
parties  were  properly  before  the  court,  the  judgment  becomes  conclusive, 
and  cannot  be  collaterally  impeached. 

Since  the  act  of  Congress  of  1834,  the  half-breed  lands  in  Lee  county  have 
been  sulject  to  the  laws  and  courts  of  Iowa,  to  the  same  extent  as  other 
lands  owned  by  individuals. 

No  statute  can  constitutionally  derogate  a  vested  right. 

Error  to  Lee  District  Court. 

Opinion  hy  Greene,  J.  This  was  an  action  of  right, 
commenced  in  September  1846,  by  Marsh,  Lee  &  Delavan 
agahist  Mitchell  D.  Wright.  The  land  claimed  in  the  de- 
claration is  described  as  the  sonth-east  quarter  of  section 
23,  and  the  west  half  of  south-west  quarter  of  section  24, 
in  township  65,  north  of  range  5  west,  and  is  a  portion  of 
the  land  known  as  the  "  half-breed  tract"  in  Lee  county. 

Declaration  and  pleas  to  the  merits  tiled  in  the  form 
provided  by  the  statute.  Rev.  Stat.,  533.  Trial  before 
Hon.  Geo.  H.  Williams  and  a  jury  was  commenced  June  2, 
and  on  the  10th  of  the  same  month  a  verdict  was  re- 
turned, and  a  judgment  thereon  rendered  for  the  plaintiffs 
below. 

On  the  trial,  it  appears  that  the  plaintiffs  proved  the 
location  of  the  land  in  dispute  as  being  comprised  within 
the  "  half-breed  tract,"  and  that  the  defendant  was  in 
l)ossession  of  it  before  and  after  the  commencement  of  this 
suit,  thereupon  all  the  treaties  between  the  United  States 
and  the  Sac  and  Fox  tribes  of  Indians,  together  with  the 
act  of  Congress,  and  the  territoiiul  hiws  in  relation  to  the 


00  SUPREME  COURT  CASES, 


Wright  V.  Marsh,  Lee  &  Delavan. 


cession,  transfer  and  partition  of  the  "  half-breed  tract," 
were  by  agreement  admitted  in  evidence,  subject  to  all 
legal  objections.  The  record  of  a  judgment  under  which 
said  tract  was  divided  among  the  respective  claimants, 
was  also  admitted  in  evidence.  The  defendant  interposed 
several  objections  to  the  admission  of  this  record,  and 
these  objections  comprise  the  principal  questions  of  law 
involved  in  the  trial  of  this  cause.  Before  entering  upon 
the  discussion  of  these  questions,  we  will  refer  to  the 
various  treaties  and  laws  affecting  the  land  in  question,  and 
state  the  leading  features  of  the  partition  proceedings. 

The  half-breed  tract,  formerly  a  portion  of  the  Louisiana 
purchase,  is  a  reservation  of  land  made  by  the  Sac  and 
Fox  tribes  of  Indians,  in  a  treaty  concluded  with  the 
United  States,  August  4,  1824,  by  which  those  tribes  relin- 
quished to  the  United  States  all  their  right,  title,  interest 
and  claim  to  the  lands  which  the  said  Sac  and  Fox  tribes 
have,  or  claim,  within  the  limits  of  the  state  of  Missorn-i, 
which  are  situated,  lying  and  being  between  the  Missis- 
sippi and  Missom-i  rivers,  and  a  line  running  from  the 
Missouri  at  the  entrance  of  the  Kansas  river,  north  one 
hundred  miles  to  the  north-west  corner  of  the  state  of  Mis- 
souri, from  thence  east  to  the  Mississippi.  It  being  under- 
stood that  the  small  tract  of  land  lying  between  the  rivers 
Des  Moines  and  Mississippi,  and  the  section  of  the  above 
line  between  the  Mississippi  and  the  Des  Moines,  is  intended 
for  the  use  of  the  half-breeds  belonging  to  the  Sac  and 
Fox  nation.  They  holding  it,  however,  by  the  same  title, 
and  in  the  same  manner,  that  other  Indian  titles  are  held. 
7  U.  S.  Stat,  at  large,  229.  The  tract  of  land  thus 
reserved  and  designated  fur  the  use  of  the  Sac  and  Fox 
half-breeds  contains  about  119,000  acres.  It  will  be  ob- 
served that  tliis  tract  was  not  in  the  state  of  Missouri,  and 
consequently  not  comprised  within  the  boundaries  of  land 
ceded  by  the  above  treaty  to  the  United  States,  and  still 
the  reservation  contains  definite  boundaries,  and  is  suffi- 
ciently appropriated  to  the  use  intended.  But  as  it  was 
not  comprehended  in  the  cession  to  the  United  States,  it 


BURLINGTON,  MAY,  1849. 


Wright  V.  Marsh,  Lee  &  Delavan. 


might  be  asstuned  that  they  acquired  no  other  control  or 
jurisdiction  over  it  than  they  have  in  other  lands  possessed 
and  retained  by  Indian  tribes,  and  that  the  Sacs  and  Foxes 
held  a  reversionary  interest  in  the  tract  upon  the  extinction 
of  their  half-breeds.  This  state  of  things,  however,  did 
not  long  continue,  for  by  another  treaty  concluded  at  Fort 
Armstrong,  in  September  1832,  the  said  half-breed  tract 
was  included  in  the  cession  of  lands  then  made  by  those 
tribes  to  the  United  States.  7  U.  S.  Stat,  at  large,  374. 
Hence  it  must  be  concluded  that,  by  the  treaty  of  1824, 
the  Sac  and  Fox  half-breeds  acquired  a  right  of  property 
and  possession  in  the  reserved  tract  of  land,  under  the 
limitation  that  they  should  hold  "  by  the  same  title,  and 
in  the  same  manner,  as  other  Indian  lands  are  held;"  and 
by  the  treaty  of  1832  the  cession  made  by  those  two  tribes 
released  to  the  United  States  their  reversionary  interest, 
and  with  it  every  vestige  of  their  authority  and  control 
over  the  land.  By  an  act  of  Congress,  approved  June  30, 
1834,  the  qualified  interest  held  by  the  half-breeds  in  the 
land  in  question  was  converted  into  an  absolute  estate  in 
fee.  This  act  relinquished  and  vested  in  said  half-breeds 
^'  all  the  right,  title  and  interest  which  might  accrue  or 
revert  to  the  United  States  to  the  reservation  of  land," 
describing  it  as  reserved  by  treaty  of  1824,  and  then  the 
act  proceeds  to  vest  them  "  with  full  power  and  authority 
to  transfer  their  portions  thereof  by  sale,  devise  or  descent, 
according  to  the  laws  of  Missouri."  4  U.  S.  Stat,  at 
large,  741,  chap.  107. 

The  half-breeds,  availing  themselves  of  the  right,  fee 
and  alienation  thus  acquired,  transferred  their  interest  to 
a  large  extent  to  other  individuals. 

On  the  14th  of  April  1840,  Josiah  Spalding  and  twenty- 
two  others  filed  a  petition  in  the  district  court  of  Lee 
county  for  a  partition  of  the  tract  among  the  respective 
owners.  The  petition  named  Euphrosine  Antaya  and  sev- 
eral others  as  defendants.  The  petitioners  set  forth  that 
they  have  a  legal  title  to  and  are  seized  in  fee  of  twenty- 
three  and  one  third  full  shares,  and  5135  acres  of  land  in 


98  SUPREME  COURT  CASES, 

Wright  V.  Marsh,  Lee  &  Delavan. 

that  tract  commonly  called  the  '"'' half -breed  tracts  The 
petition  then  describes  the  situation  and  boundaries  of  the 
tract,  alleging  that  it  contains  "1 19,000  acres,  more  or  less." 
The  particular  claim  or  share  of  each  petitioner,  with  the 
name  of  the  person  or  persons  from  whom  derived,  is 
defined  in  the  petition;  and  in  referring  to  the  interest  of 
the  defendants  named  in  the  petition,  it  avers,  that  they, 
their  heirs  and  assigns,  and  other  persons  whose  names 
and  places  of  residence  are  unknown  to  your  petitioners, 
are  tenants  in  common  with  your  petitioners  in  said  pre- 
mises. To  this  petition  is  appended  the  affidavit  of  one  of 
the  attorneys  for  the  plaintiffs  that  the  facts  therein  set  forth 
are  true,  to  the  best  of  his  knowledge  and  belief.  A  writ 
of  summons  was  issued  and  returned  that  the  defendants 
therein  named  were  ''  not  found,"  and  thereupon,  at  the 
April  term  of  the  district  court,  an  order  of  publication 
was  made.  At  the  October  term  following,  a  record  entry 
appears  in  these  words  :  "  On  this  day  came  the  petitioners 
by  Reid  &  Johnston,  their  attorneys,  and  made  proof  of 
the  publication  of  the  notice  ordered  to  be  made  at  the 
April  term,  1 840."  This  notice  sets  forth,  '^  That  a  petition 
was  filed  on  &c.,  by  &c.,  against  &c.,  and  is  now  pending, 
wherein  the  petitioners  pray  that  partition  may  be  made 
of  the  following  real  estate,  (desci'ibing  it,)  and  the  said 
defendants  and  all  other  persons  interested  in  the  said  pro- 
perty are  requested  to  appear  and  answer  said  petition  on 
&c.,  or  the  proceedings  had  in  the  cause  thereof  will  be 
binding  and  conclusive  on  them  for  ever."  Attached  to  » 
copy  of  the  notice  is  the  affidavit  of  John  H.  McKinney, 
then  publisher  of  the  "  Iowa  Territorial  Gazette,"  in  which 
he  swore  that  the  notice  had  been  published  in  that  paper 
for  twelve  consecutive  weeks,  &c.  At  the  said  October 
term,  additional  parties  were  on  application  admitted  as 
plaintiffs  to  the  petition  ;  and  several  persons  made  their 
appearance  as  defendants,  and  time  was  given  them  to  file 
their  answers.  At  the  April  term  1 841 ,  nil  the  defendants, 
named  and  not  named,  in  the  petition,  appeared  and  an- 
swered, except  Euphrosine  Antaya,  and  in  their  answers 


BURLINGTON,  MAY,  1849.  99 

Wright  V.  Marsh,  Lee  &  Delavan. 

get  forth  their  respective  titles ;  and  by  consent  the  court 
tried  the  cause,  and  entered  a  judgment  of  partition.  In 
setting  forth  the  inducement  and  the  action  of  the  court 
in  the  premises,  the  judgment  recites  as  follows  :  "  In  this 
case  said  defendants  having  ajjpeared  by  their  counsel 
respectively,  and  filed  their  answers  to  the  petition,  stated 
and  produced  their  respective  claims,  and  exhibited  their 
proofs,  in  some  instances  the  original  conveyances,  and  in 
others  authentic  copies  of  conveyances,  by  which  the  same 
are  held,  and  their  said  respective  claims,  and  those  of 
the  petitioners  by  their  counsel  res})cctively,  being  by 
consent  submitted  to  the  court  for  adjudication  and  par- 
tition, according  to  law,  and  the  court  being  satisfied  by 
sufiicient  proofs  that  the  publication  required  by  the  act 
entitled  '  An  act  to  provide  for  the  partition  of  real  pro- 
perty '  has  been  duly  made,  and  no  other  persons  known 
or  unknown  having  appeared  or  made  any  claim  or  objec- 
tion to  said  partition,  and  the  said  claims  of  the  said  par- 
ties now  before  the  court,  petitioners  and  defendants,  and 
their  respective  proofs  and  conveyances,  being  by  the  court 
heard  and  considered,  it  is  therefore,  by  the  consideration 
of  the  court,  and  with  the  consent  of  the  said  parties,  this 
8th  day  of  May,  a.d.  1841,  ordered  and  adjudged  that 
the  claims  of  rights  of  the  said  parties  resj3ectively  to  the 
undivided  j)ortions  of  the  land  mentioned  and  described 
in  said  petition,  amount  in  the  whole  to  one  hundred  and 
one  equal  portions,  and  that  of  these,  Marsh,  Lee  &  Delavan, 
trustees  for  the  claimants  under  the  articles  of  association 
dated  October  22,  1836,  filed  in  this  case,  and  as  trustees 
for  persons  interested  under  s'aid  articles,  are  entitled  to 
forty-one  shares,"  &.c.  The  judgment  then  sets  forth  the 
undivided  portions  to  which  the  other  defendants  and  the 
petitioners  were  respectively  entitled,  and  ordered  that  they 
should  be  confirmed  accordingly,  and  that  partition  of  the 
tract  should  be  equally  and  fairly  nuide  among  the  parties, 
petitioners  and  defendants,  to  the  exclusion  of  all  other 
persons.  The  judgment  designated  Samuel  B.  Ayers, 
Harmon  Booth  and  Joseph  Webster,  as  commissioners  to 


100  SUPREME  COURT  CASES, 

Wright  V.  Marsh,  Lee  &  Delavan. 

make  the  partition  into  one  hundred  and  one  sliares  of 
equal  value,  and  report  the  same  to  the  court  for  confirm- 
ation. At  the  October  term,  1841,  of  said  court,  the  com- 
missioners presented  their  report,  dividing  the  land  into 
sliares  as  they  had  been  directed,  excepting  certain  islands 
in  the  Mississippi  and  Des  Moines  rivers,  which  are  re- 
ported to  be  so  situated  that  partition  could  not  be  made 
of  them  without  prejudice  to  the  owners,  and  they  there- 
fore recommend  that  they  be  sold.  By  consent  of  counsel 
and  all  the  parties  concerned,  the  court  then  ordered,  ad- 
juged  and  decreed  that  the  report  and  all  things  therein 
contained  be  ratified  and  confirmed ;  also  ordered  the 
allotment  of  shares  to  be  made  by  the  commissioners  with 
specific  directions.  The  judgment  or  decree  of  partition, 
the  report  of  the  commissioners  designating  particular 
property  under  each  share  as  numbered  and  divided  by 
them,  the  final  judgment  of  confirmation,  and  the  allotment 
of  the  various  shares  to  the  respective  owners  are  set 
forth  in  detail  and  with  clearness  on  the  record.  So  far 
as  this  record  discloses  the  proceedings,  they  appear  to 
have  been  conducted  with  fairness,  deliberation,  and  a  par- 
ticular regard  to  the  regulations  of  the  statute.  Every 
important  order  in  the  partition  appears  to  have  been  made 
by  consent  of  all  the  joarties  concerned.  The  record  shows 
that  the  land  in  question  is  included  in  that  which  was  set 
apart  by  the  allotments  under  the  partition  to  the  plaintiffs 
below,  and  this  constituted  the  only  evidence  of  their 
title  to  the  premises.  The  principal  questions  raised  for 
adjudication  are  in  relation  to  the  admissibility  of  this 
record  as  evidence.  We  will  proceed  to  consider  the 
various  objections  urged  to  the  partition. 

1.  It  is  contended  that  the  territorial  court,  which 
rendered  the  judgment  of  partition,  must  be  considered 
under  our  state  organization  as  a  foreign  court.  As 
the  authentication  of  the  record  was  not  questioned 
in  the  court  below,  this  point  cannot  be  entertained  as 
an  objection  to  the  record  in  this  particular.  But  the 
forei"!!   character    of  the  territorial   court   is    also    ur2:cd 


BURLINGTON,  MAY,  1849.  101 

Wright  V.  Marsh,  Lee  &  Delavan. 

to  detract  from  the  authenticity  and  conclusiveness  of  the 
record,  to  remove  those  presumptions  of  law  which  would 
otherwise  applj^  in  its  favor.  It  may  well  be  questioned 
whether  this  would  be  the  effect  of  the  partition  record, 
even  if  it  should  be  considered  the  adjudication  of  a  foreign 
court.  Such,  at  least,  could  not  be  the  effect  if  we  :  hnuld 
be  governed  by  the  weight  of  English  authorities.  The 
decisions  of  the  American  courts  upon  this  jDoint  have 
been  various  and  conflicting.  All  agree,  however,  that  the 
record  of  a  decree  or  judgment  would  be  at  least  prima 
facie  evidence  of  correctness,  and  many  have  affirmed  the 
English  doctrine  that  it  would  be  conclusive  if  the  adju- 
dication was  definitive  and  made  by  a  court  of  competent 
jurisdiction.  But  the  determination  of  this  question  is 
not  necessarily  involved  in  the  trial  of  this  cause.  We 
can  l;y  no  means  arrive  at  the  concltision  that  our  terri- 
torial court  should  be  regarded  as  a  foreign  tribunal,  and 
as  a  consequence,  it  is  unnecessary  in  this  case  to  decide 
what  would  be  the  effect  of  a  record  from  a  foreign  court. 
We  have  carefully  examined  the  arguments  and  authorities 
v.hich  counsel  have  ingeniously  presented,  in  attemj)ting 
1  show  that  the  district  courts  of  the  territory  of  Iowa 
should  be  adjudged  as  foreign  when  records  emanate  from 
them  to  the  district  courts  of  the  state  of  Iowa ;  but  we 
can  see  no  good  reason,  in  fact  or  in  law,  for  thus  regard- 
ing them.  In  what  way  could  this  change  in  our  form  of 
government  so  completely  estrange  and  alienate  our  terri- 
torial courts  ?  By  this  change  our  former  courts  were  not 
transferred  to  a  foreign  soil,  nor  their  records  entrusted  to 
foreign  hands.  No  rights  which  had  been  acquired,  no 
j)roceedings  which  had  been  perfected  or  commenced  under 
our  territorial  courts,  were  relinquished  or  abated  by  our 
assuming  state  sovereignty.  Under  the  13th  article  of 
cm*  state  constitution,  judicial  proceedings,  claims  and 
rights  are  continued  as  if  no  change  had  taken  place  in 
the  government ;  the  same  laws  were  continued  in  force 
until  repealed,  and  even  the  same  officers,  civil  and  mili- 
tary, are  authorized  to  act  until  suspended.     Independent 


102  SUPREME  COURT  CASES, 

Wright  V.  Marsh,  Lee  &  Delavan. 

of  tlie  connecting  link  existing  between  our  territorial  and 
state  courts  ex  necessitate  rei,  we  find  them  bound  together 
under  the  same  sovereignty  by  constitutional  provision. 
So  far  from  having  been  expatriated  by  our  constitution 
and  new  form  of  government,  it  will  be  observed  that  our 
territorial  courts  were  not  at  first  even  suspended,  but 
were  ultimately  merged  and  jDerpetuated  into  state  courts. 
Proceedings  commenced  in  the  former  were  conducted  to 
final  judgment  in  the  latter.  Even  the  judges  and  clerks 
in  the  one  were  continued  for  a  time  in  the  other.  They 
were  both  constituted  within  the  same  territorial  limits, 
appointed  to  adjudicate  within  the  same  venues,  upon  the 
same  realty,  and  among  the  same  people  ;  and  thus  far  the 
records  of  the  two  courts  have  generally  been  entered  in 
the  same  books.  They  are  preserved  in  the  same  offices, 
under  the  charge  and  keeping  of  the  same  clerks,  and  are 
alike  subject  to  the  inspection  of  our  citizens.  Why,  then, 
should  the  records  of  our  former  courts  be  regarded  as 
foreign  by  our  present  courts?  Those  of  our  territorial 
courts,  except  in  cases  of  a  strictly  federal  character  or 
jurisdiction,  have  become  the  property  of  the  state  by  appro- 
priate and  legitimate  descent.  They  are  properly  retained 
and  controlled  b}^  our  state  courts,  and  copies  may  be 
authenticated  by  them  for  the  use  of  those  who  may  be 
interested  in  them.  In  thus  concluding  that  our  territorial 
records  are  as  much  under  our  state  jurisdiction,  and  are  as 
domestic  in  then*  character,  as  are  those  of  our  state  courts, 
we  have  not  overlooked  the  decision  of  the  supreme  court  of 
the  United  States  in  Hunt  v.  Palao,  4  Howard,  589.  This 
was  a  case  of  federal  jurisdiction,  cognizable  only  before 
a  court  of  the  United  States — a  case  over  which  no  state 
could  exercise  authority  or  control,  and  consequently  it  is 
not  applicable  to  the  question  at  bar.  An  act  of  Congress, 
approved  February  22,  1848,  in  relation  to  the  records  of 
oui-  territorial  courts,  recognizes  the  transfer  of  all  such 
records  to  the  state,  excepting  the  records  of  a  federal  char- 
acter, and  even  those  the  respective  clerks  are  authorized  to 
retain,  and, upon  np})licatiuul)yany  person  interested, make 


BURLINGTON,  MAY,  1849.  103 

Wright  V.  Marsh,  Lee  &  Delavan. 

and  certify  a  full  and  complete  copy  of  the  same  to  the 
clerk  of  the  district  court  of  the  United  States,  so  far  as 
it  can  be  done  without  mutilating  the  records  of  the  terri- 
torial courts.  See  Laws  of  30th  Con.,  1st  sess.,  p.  8,  §  3. 
These  various  considerations,  we  think,  clearly  establish 
the  domestic  character  of  our  territorial  courts  as  prede- 
cessors of  our  state  courts.  Beattij  v.  Ross^  1  Branch,  188. 
2.  It  is  urged  that  the  district  court  which  rendered  the 
decree  was  one  of  inferior  and  limited  jurisdiction.  In 
support  of  this  position,  counsel  have  cited  2  McLean,  126  ; 
]  Kent's  Com.,  303;  2  U.  S.  Cond.,  37,  405;  2  Howard 
U.  S.,  21 ;  6  ih.^  39.  These  authorities  pertain  exclusively 
to  the  jurisdiction  of  the  circuit  and  district  courts  of  the 
United  States,  and  have  no  bearing  whatever  upon  the 
territorial  district  courts,  nor  do  the  authorities  cited  hold 
that  those  United  States  courts  are  of  inferior  jurisdiction. 
Tliey  are  limited,  but  not  inferior.  Their  proceedings, 
therefore,  are  not  nullities,  even  if  their  jurisdiction  does 
not  appear  of  record,  and  if  not  reversed  for  that  defect, 
those  proceedings  are  conclusive  evidence  between  parties 
and  privies.  McCormick  v.  Sullwant,  10  Wheat.,  192; 
Turner  v.  Bank  of  X.  A.,  4  Dallas,  8;  Reed  v.  Vaughn^ 
1 0  Mis.,  447.  If,  then,  the  circuit  and  district  courts  of  the 
United  States  are  not  of  inferior  jurisdiction,  a  fortiori  the 
territorial  com-ts  are  not,  for  the  latter  are  not  only  invested 
with  the  same  extent  of  jurisdiction  as  the  former  in  pro- 
ceedings of  a  federal  character — Lorimer  v.  State  Bank  of 
III.,  Morris,  223 — but  also  the  general  common  law  juris- 
diction usually  imparted  to  state  courts  of  record.  The  9th 
section  of  the  Iowa  organic  law  provides,  that  tlie  several 
courts  thereby  created,  both  ap2)ellate  and  original,  shall 
be  as  limited  by  law,  and  that  the  supreme  and  district 
courts  respectively  shall  have  a  chancery  as  well  as  a 
common  law  jurisdiction.  The  territorial  district  courts, 
in  addition  to  the  f^'l'M-al  powers  conferred  upon  them, 
were  invested  with  extended  and  general  jurisdiction  over 
actions  real,  persouiw  and  mixed.  Under  tliis  general 
jurijjdiction  they  were  authorized   to  try  and  determine, 


104  SUPREME  COURT  CASES, 

Wright  V.  Marsh,  Lee  &  Delavan. 

according  to  the  course  of  the  common  law,  all  ordinary 
actions,  both  local  and  transitory.  They  were  also  invested 
with  a  special  jurisdiction,  conferred  by  legislative  enact- 
ment, in  proceedings  which  could  not  be  entertained  as 
actions  at  common  law.  The  term  inferior  courts,  in  a 
strict  and  technical  sense,  is  only  applicable  to  courts  of  a 
limited  and  special  jurisdiction,  in  which  the  proceedings 
are  not  according  to  the  course  of  the  common  law,  but 
detined  by  statutory  regulations.  It  must  be  obvious  that 
our  territorial  district  courts  cannot  be  included  under  that 
tei'm.  They  were  endowed  with  all  the  general  powei's  and 
universal  attributes  of  common  law  jurisdiction.  Tlieir 
authority  was  general,  and  superior  to  all  but  the  sui)reme 
court.  Justices  of  the  peace,  county  commissioners  and 
probate  courts,  were  all  subordinate  and  inferior  to  them. 
In  one  sense,  in  one  connection  only,  can  they  be  regarded 
as  inferior  tribunals,  and  that  is  in  relation  to  the  supreme 
or  appellate  courts  before  which  their  judgments  might 
be  taken  for  revision.  Still  their  powers  are  general, 
their  jurisdiction  in  legal  contemplation  is  not  limited  or 
inferior.  Many  authorities  in  relation  to  superior  and 
inferior  courts  may  be  found  collected  in  3  Cow  &  Hill's 
Notes  to  Phil.  Ev.  n.  n.  691-4.  But  it  is  contended  that, 
if  the  district  court  which  rendered  the  decree  did  possess 
general  jurisdiction,  it  acted  in  the  partition  proceedings 
under  special  authority  conferred  by  statute,  and  was  con- 
sequently quoad  hoc  an  inferior  or  limited  court.  If  in 
such  proceedings  the  court  possessed  no  authority  beyond 
that  conferred  by  statute,  this  position  could  not  be  con- 
troverted. And  if  the  court  was  thus  limited  in  jurisdic- 
tion, it  will  not  be  questioned  that  the  course  prescribed 
by  the  statute  ought  to  have  been  observed  with  at  least 
substantial  exactness,  and  every  fact  necessary  to  show 
jurisdiction  ought  to  appear  on  the  face  of  the  proceedings. 
Under  this  view  of  the  case,  various  objections  are  urged 
to  show  that  the  proceedings  were  not  in  accordance  with 
the  partition  act,  and  consequently  nugatory. 

3.  As  preliminary  to  these  objections,  it  is  averred,  that 


BURLINGTON,  MAY,  1849.  105 

Wright  V.  Marsh,  Lee  &  Delavan. 

tlie  district  court,  in  making  the  partition,  could  only  act 
as  a  court  of  chancery.  This  position  is  assumed  in  order 
to  show  that  the  proceedings  should  have  been  conducted 
within  the  limits,  and  under  the  regulations,  of  equity 
jurisprudence.  It  may  be  well  to  remark  upon  the  powers 
of  the  district  court,  independent  of  the  statutes.  The 
doctrine  is  now  universally  conceded,  that  courts  of  equity 
may  exercise  a  general  concurrent  jurisdiction  with  courts 
of  law  in  all  partition  cases.  Nor  is  equity  jurisdiction 
limited  to  such  cases  only  as  are  relievable  at  law,  but  in 
making  partition,  equity  will  generally  follow  the  anahi- 
gies  of  the  law,  and  extend  relief  in  all  cases  where,  by 
rules  of  law,  it  would  be  regarded  as  appropriate,  and  also 
in  many  cases  where  those  rules  would  not  fm'uish  a  plain, 
complete  and  adequate  remedy.  Mitford's  Eq.  PL,  209  ; 
1  Story's  Eq.  Jur.,  646,  658. 

At  common  law  the  writ  of  partition  may  be  traced  to 
a  very  remote  period,  but  the  benelits  of  that  writ  could 
only  be  extended  to  coparceners,  until  31  and  32  Henry 
VIIL,  c.  c.  1  and  32,  by  which  joint  tenants  and  tenants 
in  common  might  be  required  by  writ  of  partition  to  divide 
their  lands.  2  Black.  Com.,  185, 194.  A  jm"isdictionthus 
extended  to  common  law  courts,  by  statutes  of  so  old  a 
date,  since  which  much  that  is  common  law  has  taken  its 
origin,  it  may  well  be  assumed  that  common  law  com'ts 
might  inherently  exercise  that  extended  jurisdiction.  This 
conclusion  is  necessarily  embraced  in  that  advanced  by 
Judge  Story  and  other  elementary  writers,  that  in  parti- 
tion proceedings,  courts  of  law  have  general  concurrent 
jurisdiction  with  courts  of  equity.  Story's  Eq.  Jur.,  658. 
And  in  either  court,  principles  of  common  law  would  ob- 
tain in  testing  the  title  or  rights  of  the  respective  claim- 
ants before  entering  a  decree  or  judgment  of  partition. 
We  are  of  the  opinion,  then,  that  our  territorial  district 
courts,  independent  of  the  partition  act,  had  general  juris- 
diction of  partition  proceedings,  both  at  law  and  in  equity. 

The  question  now  recurs,  does  the  statute  providing  for 
the  partition  of  real  property,  Rev.  Stat.,  458,  confine  cases 
Vol.  II.  8 


106  SUPREME  COURT  CASES, 

Wright  V.  Marsh,  Lee  &  Delavan, 

of  partition  within  tlie  limits  of  equitable  jurisdiction  ? 
We  are  enable  to  find  any  clause  in  that  statute  wbicb 
will  justify  an  affirmative  answer.  It  is  neither  made  an 
action  at  law  nor  a  proceeding  in  chancery,  but  the  prin- 
ciples of  both  are  united  and  applied  to  the  statute  regula- 
tions. The  act  provides  for  a  petition  and  answer,  and 
other  proceedings,  as  in  equity.  It  also  provides  for  a  ser- 
vice by  summons,  for  issues  of  fact,  and  trials  by  jury,  for 
the  rendering  of  judgments,  and  for  writs  and  assignments 
of  errors,  and  other  proceedings,  as  at  law — §§  2,  10,  12, 
13,  14,  16,  19,  36,  49,  56,  63,  64  and  65.  Section  56  pro- 
vides that  the  proceedings  authorized  by  the  act  are  in- 
tended as  a  substitute  for  all  partitions  in  chancery,  as 
well  as  at  law,  and  the  court  is  authorized  to  exercise 
equity  powers  except  as  therein  otherwise  provided.  The 
act  generally  contemplates  the  exercise  of  common  law 
powers.  The  last  four  sections  of  the  statute  clearly 
authorize  proceedings  at  law.  Section  02  declares,  "  That 
if  the  petitioners  for  any  partition  become  nonsuit,  or 
suffer  a  discontinuance,  or  a  verdict  shall  pass  against 
them,  or  judgment  shall  be  rendered  against  them  on  de- 
murrer, they  shall  pay  costs,  to  be  recovered  and  collected 
as  in  personal  actions.""  The  next  section  provides,  "  That 
upon  any  final  judgment,  rendered  pursuant  to  the  provi- 
sions of  the  act,  a  writ  of  error  may  be  brought,  ^c,  in  the 
same  manner  as  in  personal  actions.^''  And  the  last  sec- 
tion provides,  that  "judgment  may  be  given  by  the  court 
above,  either  for  affirmance  or  reversal  in  part  or  in  whole, 
or  a  new  adjudication  of  the  matter  may  be  directed  in  the 
com't  below.  The  proceedings  in  other  respects  shall  be 
the  same  as  in  personal  actions."  Evidently  this  act  does 
not  sustain  the  point  made  by  counsel,  that  in  making  par- 
tition the  court  was  confined  to  chancery  jurisdiction.  The 
jurisdiction  of  the  court  was  threefold:  1.  It  was  invested 
with  all  the  cumulative  and  special  powers  created  by  the 
statute.  2.  It  retained  all  chancery  attributes  except  as 
otherwise  provided  by  the  act.  3.  It  retained  all  its  in- 
herent common  law  authority  so  far  as  it  could  be  exer- 


BURLINGTON,  MAY,  1849.  107 


Wright  V.  Marsh,  Lee  &  Delavan. 


cised  consistently  witli  the  two  preceding  powers.  The 
three  jurisdictions  are  comprised  in  and  are  more  or  less 
exercised  in  all  partition  suits  under  that  act.  The  re- 
quirements of  the  statute,  so  far  as  they  are  especially 
substituted  for  equity  and  common  law  proceedings,  are 
paramount,  but  beyond  such  special  substitution,  law  and 
chancery  interpose,  with  unabated  and  general  concurrent 
authority.  Hence,  we  conclude  that  even  in  cases  of  par- 
tition under  our  statute,  the  district  court  cannot  be  con- 
sidered quoad  hoc,  as  inferior  or  limited.  The  doctrine  will 
not  be  questioned  that  the  general  jurisdiction  of  a  court 
cannot  be  taken  away  unless  by  express  words  of  exclu- 
sion. The  statute  in  question  has  only  enlarged  and 
united  powers  previously  existing  in  the  com-t,  and  modi- 
fied the  proceedings  under  those  powers,  and  therefore 
there  is  no  reason  why  the  same  liberal  rule  should  not  be 
applicable  to  support  the  presumption  that  the  court  acted 
correctly  and  by  competent  authority. 

But  before  deciding  upon  the  admissibility  and  conclu- 
siveness of  the  partition  record,  it  may  be  well  to  examine 
the  several  objections  urged  to  the  partition  proceedings. 
One  j:)oint  made  is,  that  the  jjetition  does  not  describe  the 
respective  interests  of  all  the  joint  owners ;  nor,  if  their 
names  were  unknown,  does  it  state  that  fact.  In  this  par- 
ticular, it  is  true,  the  petition  is  not  sufficiently  specific  and 
certain,  but  this  is  far  from  being  a  fatal  defect,  or  one 
which  can  involve  a  question  of  jm-isdiction.  The  petition 
described  the  land  with  certainty,  averred  that  the  parties 
owned  it  as  tenants  in  common,  and  prayed  for  a  partition 
thereof  among  the  respective  owners.  In  a  word,  the  peti- 
tion contained  all  the  allegations  necessary  to  confer  juris- 
diction upon  the  court  to  act  in  the  premises,  but  it  omits 
to  describe  the  interest  of  unknown  owners.  Such  a  de- 
fect in  form  might  have  been  good  cause  for  demurrer, 
and  if  demurred  to,  might  have  been  amended  to  a  literal 
compliance  with  the  statute.  But  it  is  by  no  means  a 
defect  which  could  impeach  the  proceedings,  or  be  taken 
advantage  of  after  judgment,  much  less  does  it  amount  to 


108  SUPREME  COURT  CASES, 


Wright  V.  Marsh,  Lee  &  Delavan. 


a  defect  which  can  be  collaterally  assailed.  We  have 
carefully  examined  the  authorities  cited  by  counsel  upon 
this  point,  but  we  can  see  nothing  in  them  inimical  to 
our  conclusion. 

Another  objection  presented  is,  that  the  petition  was  not 
verified  by  such  an  affidavit  as  the  law  requires.  All  that 
the  statute  directs  upon  this  point  is,  that  "  the  petition 
shall  be  verified  by  affidavit."  Rev.  Stat.,  459,  §  2.  We 
have  already  noticed  that  the  petition  was  verified  by  the 
affidavit  of  one  of  the  attorneys.  But  it  is  alleged  that 
such  an  affidavit  is  not  reconcilable  with  the  object  and 
spirit  of  the  statute  ;  that  it  should  have  been  made  by  the 
plaintifi's  named  in  the  petition,  or  at  least  by  some  of  them. 
It  would  be  difficult,  we  think,  to  apply  any  rule  of  con- 
struction to  the  statute  which  can  justify  this  position.  The 
act  does  not  require,  nor  can  we  see  any  necessity  for  its . 
requiring,  the  affidavit  to  be  made  by  the  petitioners  them- 
selves. If  a  petition  is  verified  by  affidavit,  it  is  strictly 
conformable  to  the  statute,  and  it  can  make  no  difi'erence 
whether  it  is  made  by  a  petitioner  or  by  his  attorney,  or 
by  any  other  person  who  may  feel  himself  sufficiently 
acquainted  with  the  facts  averred  to  justify  him  in  making 
the  affidavit.  But  if  the  affidavit  was  insufficient,  the 
objection  comes  too  late.  It  was  not  an  element  of  juris- 
diction without  which  the  court  could  not  act.  It  was 
merely  a  formal  part  of  the  petition,  a  j)reliminary  form  in 
commencing  the  suit,  and  if  objectionable  or  insufficient, 
the  question  should  have  been  raised  before  answers  were 
filed.  After  answering,  it  must  be  considered  as  waived. 
Besides,  if  the  affidavit  was  defectively  made,  it  but  amounts 
to  one  of  those  irregularities  which  could  not  be  collater- 
ally questioned,  even  if  the  proceedings  had  taken  place 
before  an  inferior  tribunal.  It  is  next  objected  that  the 
court  acquired  no  jurisdiction  over  the  unknown  owners 
in  consequence  of  the  defective  publication.  The  record, 
it  is  true,  does  not  disclose  publication  to  the  full  extent 
required  by  the  9th  section  of  the  partition  act.  That  sec- 
tion provides  for  the  publication  of  notice  for  twelve  weeks 


BURLINGTON,  MAY,  1849.  109 


Wright  V.  Marsh,  Lee  &  Delavan. 


successively  .in  some  newspaper  printed  most  convenient 
to  the  place  wliere  the  com-t  was  held,  and  for  four  suc- 
cessive weeks  in  some  newspaper  printed  at  the  seat  of 
government.  The  twelve  weeks  publication  appears  to  have 
been  regularly  made,  but  the  record  is  silent  as  to  the 
other,*  with  the  exception  of  a  recital  in  the  partition 
judgment  that  the  petitioners,  by  their  counsel,  made  proof 
of  the  publication  of  the  notice  previously  ordered  by  the 
court.  It  appears,  then,  that  proof  of  publication  was  before 
the  court.  It  was  considered,  and  the  publication  adjudged, 
to  be  such  as  was  required  by  law.  It  became  a  decision 
of  that  court  upon  a  matter  coram  judice,  and  whether 
made  upon  sufficient  or  insufficient  proof,  whether  the 
court  decided  correctly  or  erroneously  as  to  the  adequacy 
of  the  publication,  it  cannot,  in  this  proceeding,  become  a 
subject  of  inquiry.  It  was  a  question  which  that  court 
alone  had  the  original  right  to  determine,  and  within  its 
legitimate  jurisdiction  did  decide  that  the  publication  was 
sufficient.  If  erroneous,  the  party  affected  by  it  had  his 
remedy  ;  he  could  have  had  the  decision  revised  and  cor- 
rected on  writ  of  error,  and  upon  that  writ  only  was  the 
question  subject  to  re-examination. 

As  the  record  comes  from  a  court  of  general  jurisdiction, 
it  did  not  become  necessary  to  incorporate  into  it  a  copy 
of  the  notice  or  the  proof  of  publication.  Without  these, 
the  record  would  have  been  sufficiently  authentic  and 
conclusive.  The  authority  of  the  court  over  the  subject 
matter  and  over  the  parties,  and  the  correctness  of  the 
proceedings,  would  have  been  favored  by  all  the  force  of 
legal  presumption. 

Objections  are  also  urged  to  the  proceedings  of  the 
commissioners  in  neglecting  to  follow  the  order  under 
which  they  were  appointed  and  the  judgment  of  partition. 

*  The  otlier  notice  for  four  week?,  required  by  the  statute,  was  published 
in  the  "  Iowa  Patriot,"  and  the  proof  of  publication  was  properly  made  and 
filed ;  but  was  left  out  of  the  transcript  by  the  oversight  of  the  clerk  of  the 
district  court  in  making  out  the  copy  of  the  proceedings  in  the  partition 
suit  for  the  supreme  court,  in  this  action  of  right. 


110  SUPREME  COURT  CASES, 

Wright  V.  Marsh,  Lee  &  Delavan. 

But  we  can  see  nothing  in  those  deviations  which  should 
invalidate  the  proceedings,  especially  as  they  were  indis- 
pensable to  a  just  and  equitable  partition  of  the  property, 
were  made  by  consent  of  all  parties  who  had  adduced 
evidence  of  title  before  the  commissioners,  or  who  were 
known  to  be  legally  interested  in  the  tract,  and  were  fully 
confirmed  by  the  court. 

The  final  judgment  is  also  assailed  as  being  a  departure 
from  the  commissioners'  report.  We  can  discern  no  found- 
ation for  this  objection.  The  court  corrected  an  erroneous 
computation  made  by  the  commissioners  as  to  the  number 
of  shares,  by  deducting  small  portions  from  tliree  of  the 
defendants  by  their  consent,  and  by  consent  of  all  parties. 
Without  such  correction,  inaccuracy,  injustice,  and  confu- 
sion would  have  resulted  from  a  confirmation  of  the  report ; 
but  with  it  the  rights  and  claims  of  all  were  satisfactorily 
adjusted.  Such  a  correction  cannot  be  regarded  as  a  de- 
parture, as  a  deviation,  or  as  an  unwarranted  exercise  of 
judicial  powers. 

The  want  of  conveyances  to  the  respective  proprietors, 
under  the  partition,  is  also  presented  as  a  deficiency. 
Although  this  question  cannot  affect  the  admissibility  of 
the  record,  it  may  be  well  to  determine  whether  deeds  are 
necessary  in  a  partition  of  real  estate,  under  the  statute. 
A  partition  in  equity  proceeds  upon  conveyances  to  be 
executed  by  the  parties,  or  in  default  by  commissioners. 
Mc  Clay  Y.Bowman,  1  Littel,248;  1  Story's  Eq.  Jur.,  §  652. 
But  a  j)artition  at  law  operates  by  virtue  of  the  judgment. 
A  final  judgment  of  partition  is  conclusive  evidence  of 
title  in  the  parties  to  the  extent  therein  designated.  The 
statute  does  not  authorize  a  decree,  but  it  expressly  requires 
a  judgment  of  partition,  and  a  judgment  of  confirmation. 
Section  19,  Rev.  Stat.,  461,  enacts,  that  "  after  all  the  shares 
and  interests  shall  have  been  settled  in  any  of  the  methods 
aforesaid,  judgment  shall  be  rendered  confirming  such 
shares  and  interests,  and  that  partition  be  made  accord- 
ingly." Section  35  provides,  that  "  upon  the  report  of  com- 
missioners being  confirmed,  judgment  shall  thereupon  be 


BURLINGTON,  MAY,  1849.  Ill 

Wright  V.  Marsh,  Lee  &  Delavan. 

rendered  that  such  partition  be  firm  and  effectual  for  ever ; " 
and  the  next  section  concludes,  that  the  judgment  afore- 
said shall  be  binding  and  conclusive  upon  all  jDersons 
whatsoever.  It  is  a  fact  worthy  of  notice,  that  the  word 
decree  is  not  used  in  the  statute  to  designate  any  order  or 
decision  to  be  made  by  a  court  in  partition  proceedings. 
Therefore  the  record  before  us  must  be  considered  that  of 
a  judgment,  and  as  such,  is  per  se  conclusive  evidence  of 
the  rights  and  title  therein  adjudged  without  the  formality 
of  conveyances.  We  are  aware  that  in  our  state  an  order 
of  partition  is  usually  denominated  a  "  decree  "  or  "  decree 
of  partition,"  but  such  designation  is  not  authorized  by  the 
statute  nor  by  the  character  of  the  proceedings.  Though  in 
a  measure  obtained  by  the  interposition  of  chancery  prac- 
tice, it  is  nevertheless  a  judgment  of  partition,  and  such 
should  be  its  style.  Rev.  Stat.,  §§  62,  63,  64,  65.  We 
have  thus  separately  noticed  these  various  objections  to  the 
record  of  partition,  in  order  to  settle  the  practice  in  future 
analogous  cases.  But  they  might  have  been  collectively 
and  more  summarily  disposed  of  on  general  principles. 
Collaterally  such  objection  can  never  prove  availing,  espe^ 
cially  when  applied  to  the  record  from  a  court  of  general 
jurisdiction  in  which  power  and  authority  will  be  presumed 
until  the  contrary  clearly  appears.  In  Shiimrvay  v.  Still- 
man,  4  Cowen,  294,  296,  in  an  action  of  debt,  or  a  judg- 
ment from  the  common  pleas  of  Massachusetts,  it  was  held, 
"  Every  presumption  is  in  favor  of  the  jm-isdiction  of  the 
court,  the  record  is  prima  facie  evidence  of  it,  and  will  be 
held  conclusive  until  clearly  and  explicitly  disproved." 
So  also  in  Mills  v.  Martin,  19  John.,  33;  Thomas  v. 
Robinson,  3  Wend.,  267;  Peacock  v.  Bell,  1  Saund.,  73, 
et  seg.  ;  Wheeler  v.  Raymond,  8  Cow.,  311;  Smith  v. 
Rhoads,  1  Day,  168;  Granger  v.  Clarke,  9  Shep.,  128; 
Van  Dyke  v.  Bastedo,  3  Greene,  224. 

We  regard  it,  then,  as  well  settled  that  a  want  of  juris- 
diction will  not  be  presumed  in  a  com-t  of  general  authority, 
and  where  the  record  from  such  a  com*t  is  silent  or  does 
not  aver  all  the  facts  necessary  to  show  that  jurisdiction 


112  SUPREME  COURT  CASES, 


Wright  V.  Marsh,  Lee  &  Dehivan. 


was  properly  exercised,  it  will  still  bo  presumed  that  the 
court  legally  acquired  power  over  the  suhject  matter,  and 
over  the  parties.  That  the  subject  matter  of  partition  was 
cognizable  by  the  district  court  has  not  been  controverted, 
and  we  think  it  has  been  sufficiently  demonstrated  that  the 
court  has  both  general  and  superior  original  jurisdiction 
over  such  proceedings.  The  sufficiency  of  the  petition 
in  form  and  substance,  and  in  verification ;  the  adequacy 
of  the  publication,  which  the  statute  declares  shall  be 
considered  equivalent  in  all  respects  to  a  personal  service 
of  the  summons,  (Rev.  Stat.,  460,  §  9;)  and  the  correct- 
ness of  all  other  proceedings  in  the  case,  to  give  the  court 
jurisdiction  not  only  in  rem  but  also  in  personam^  were 
questions  within  the  exclusive  purview  of  that  court ; 
they  are  solemnly  adjudicated,  and  that  judgment,  in  the 
language  of  the  statute,  "  shall  be  binding  and  conclusive 
upon  all  persons  whatever."  Rev.  Stat.,  462,  §  36.  The 
correctness  of  that  judgment  having  never  been  directly 
questioned  before  an  appellate  court,  the  rights  of  property 
resulting  from  it  should  be  admitted  as  valid,  conclusive 
and  effectual.  Every  man  interested  in  the  property  had 
ample  opportunity  to  appear  and  assert  his  rights.  The 
door  was  open  to  all,  the  notice  was  extended  to  all,  an 
abundance  of  time  given  for  all  to  prove  their  claims  and 
to  controvert  the  rights  of  others.  In  justice  to  the  pro- 
ceedings, it  must  be  observed,  that  they  appear  to  have 
been  conducted  with  calmness,  with  deliberation,  and  with 
a  commendable  regard  to  the  requirements  of  law  and  the 
ends  of  justice.  The  parties  as  owners  of  the  ''  half-breed 
tract "  appear  from  the  record  to  have  been  represented  \ij 
counsel  with  but  one  "exception,  and  her  rights  appear  to 
have  been  protected  by  the  court ;  and  the  fact  that  the 
judgment  was  rendered  by  general  consent  when  the  parties 
were  numerous,  and  their  rights  greatly  conflicting,  gives 
strength  to  the  conclusion  that  the  rights  of  all  were  con- 
sulted in  the  partition,  and  that  all  things  of  a  defective 
or  erroneous  character  were  waived.  If  any  one  was 
aggrieved  by  the  proceedings,  he  had  an  opportunity  to 


BURLINGTON",  MAY,  1849,  113 

Wright  V.  Marsh,  Lee  &  Delavan. 

move  for  an  arrest,  or  that  they  he  set  aside  for  any  irre- 
gularity or  neglect  to  conduct  them  according  to  the  rules 
of  law  ;  or  if  the  court  decided  erroneously  in  any  par- 
ticular, the  parties  injuriously  affected  thereby  had  their 
remedy.  A  writ  of  error  from  the  supreme  court  might 
have  been  sued  out  within  the  time  wisely  limited  by  law, 
and  under  that  writ  any  defective  action  of  the  court  might 
have  been  reversed  and  corrected.  But  the  time  pre- 
scribed by  law  for  the  motion,  and  for  the  writ  of  error,  was 
suffered  to  pass,  and  by  silent  acquiescence,  by  general  tacit 
consent,  the  judgment  has  become  invulnerable,  except  for 
fraud,  even  against  a  direct  assault  upon  it,  before  an 
appellate  forum.  If  thus  removed  beyond  judicial  control, 
and  rendered  irreversible  in  any  direct  proceeding,  mani- 
festly there  could  be  no  assailable  point  in  the  judgment 
when  collaterally  drawn  in  question.  If  judgments  and 
decrees  could  be  thus  collaterally  avoided,  there  would  be 
no  certainty,  no  security  injudicial  actions.  No  confidence 
could  be  reposed  in  titles  thus  acquired,  no  protection 
afforded  to  those  who  might  innocently  purchase  under 
them.  By  the  solemn  judgment  of  a  competent  tribunal, 
a  large  tract  of  land  might  be  set  apart  to  legal  owners, 
under  them  many  others  acquire  title,  make  valuable  and 
extensive  improvements,  and  after  reposing  in  the  quiet 
enjoyment  of  theh  i30ssessions  for  many  years,  have  all 
their  rights  to  the  property  involved  in  doubt  or  destroj^ed 
by  an  evasive  collateral  proceeding  at  law.  Under  so 
pernicious  a  doctrine,  general  distrust  and  odium  would 
attach  to  judgment  titles.  In  a  collateral  proceeding 
before  one  court  to-day,  a  judgment,  if  merely  voidable, 
might  be  declared  a  nullity,  but  to-morrow,  before  some 
other  tribunal,  be  adjudged  good  and  valid ;  and  thus  end- 
less disputes  and  uncertainty,  rank  injustice  and  oppres- 
sion, would  be  encouraged  by  the  tribunals  of  justice,  which 
were  instituted  to  suppress  these  evils.  But  fortunately 
for  the  rights  of  citizens  and  the  security  of  property,  such 
a  rule  has  been  but  seldom  recognized  by  enlightened 
courts.    There  is  perhaps  no  featm-e  in  our  judicial  system 


114  SUPREME  COUPtT  CASES, 

Wright  V.  Marsh,  Lee  &  Delavan. 

more  wortliy  of  commendation  tlian  that  all  decisions 
made  by  constitutional  authority  are  final,  conclusive,  and 
effectual  for  ever,  unless  the  injm*ed  party  directly  and 
properly  object  to  the  decision  before  an  appellate  power, 
within  the  time  judiciously  limited  by  law.  This  doctrine 
has  been  fully  confirmed,  and  its  correctness  most  for- 
cibly illustrated,  by  the  highest  American  com-ts.  Voorhees 
V.  Bank  of  U.  S.,  10  Peters,  449.  The  leading  principles 
decided  in  this  case  were  based  upon  long  established 
and  even  elementary  rules  of  common  law,  and  were  made 
conformable  to  many  previous  decisions  by  the  same  ex- 
alted tribunal.  In  Kempe's,  Lessee  v.  Kennedy^  5  Cranch, 
173,  187,  the  doctrine  emanates  from  the  supreme  court 
by  Chief  Justice  Marshall,  that  the  inferior  court  of  com- 
mon pleas  for  a  county  in  New  Jersey  possessed  general 
jurisdiction,  and  although  its  judgment  was  erroneous, 
it  was  not  void.  In  Stillman  v.  Maij,  6  Cranch,  267,  the 
record  before  the  court  did  not  contain  the  requisite  aver- 
ments of  jurisdiction,  but  it  was  still  held  obligatory  as 
a  decree.  In  Williams  v.  Ameroyd,  7  Cranch,  424,  434, 
Chief  Justice  Marshall  says,  "  That  the  sentence  is  avowedly 
made  under  a  decree  subversive  of  the  law  of  nations,  will 
not  help  the  appellant's  case  in  a  court  which  cannot  revise, 
correct,  or  even  examine  that  sentence."  If  an  erroneous 
judgment  binds  the  property  on  which  it  acts,  it  will  not 
bind  that  property  the  less  because  that  error  is  apparent; 
of  that  error  advantage  can  be  taken  only  in  a  court  which 
is  capable  of  correcting  it.  The  above  cases  in  Cranch 
are  reviewed  in  Ex  parte  Watkins,  3  Peters,  193,  and  fully 
confirmed;  and  in  a  more  recent  case  the  same  principles 
were  elaborately  discussed,  and  re-affirmed  in  an  able 
opinion  by  Judge  Baldwin,  whose  wisdom  and  correctness 
in  all  jurisdictional  questions  is  universally  conceded. 
Grignon  v.  Astor,  2  How.  U.  S.,  319.  By  applying  to 
the  record  in  the  case  at  bar  the  principles  so  clearly  settled 
and  deliberately  determined  by  the  supreme  court  of  the 
United  States,  its  admissibility  cannot  be  doubted.  It 
discloses  more  than  is  essential  for  a  record  from  a  court 


BURLINGTON,  MAY,  1849.  115 

Wright  V.  Marsh,  Lee  &  Delavan. 

of  general  jurisdiction.  It  was  enougli  for  the  record  to 
show  the  subject  matter  and  the  parties  before  the  court, 
the  exercise  of  judicial  power  in  relation  to  them,  and  a 
final  judgment.  If  no  appeal  is  taken,  or  writ  of  error 
sued  out  within  the  limitation  prescribed  by  statute,  that 
judgment  becomes  conclusive.  The  record  of  it  is  absolute 
and  incontrovertible  verity,  and  the  judgment  having 
been  rendered  by  a  court  of  competent  jurisdiction  over 
the  subject  matter,  can  be  impeached  only  by  showing 
fraud.  In  short,  no  other  than  an  appellate  power  can 
inspect  the  proceedings  behind  the  judgment.  And  these 
principles  are  especially  settled  in  their  application  to 
courts  of  record  which  possess  an  original  general  juris- 
diction, the  j)Ower  to  hear  and  determine  causes  generally. 
Such  a  court  possesses  within  itself,  as  a  part  of  its  or- 
ganization, the  power  to  decide  all  presented  questions  of 
jiu-isdiction  within  its  authority,  and  to  exercise  that  juris- 
diction to  a  final  judgment,  which  becomes  conclusive  of 
all  matters  decided  upon  within  its  jurisdiction,  without 
setting  forth  in  the  proceedings  the  facts,  circumstances 
or  evidence  upon  which  the  cause  was  determined.  2  How. 
U.  S.,  340,  341.  Apply  these  comprehensive  and  well 
settled  prijiciples  to  the  partition  record  in  this  case,  and 
all  doubt  as  to  its  verity,  conclusiveness  and  admissibility 
must  be  removed.  The  case  of  Denning  v.  Corwin,  11 
Wen.,  647,  does  not,  it  is  true,  altogether  harmonize  with 
this  conclusion,  and  with  what  must  be  regarded  as  the 
well-established  doctrine  at  this  day,  even  in  the  New 
York  courts. 

But  if  that  case  is  not  virtually  overruled,  we  could  give 
it  no  force  as  authority  to  the  question  at  bar.  It  was 
made  upon  a  different  statute  and  upon  a  different  state 
of  facts.  An  affidavit  that  the  owners  were  unknown  was 
required  before  an  order  of  publication,  but  the  record 
was  silent  as  to  the  affidavit  and  publication.  In  this  state 
no  such  affidavit,  preliminary  to  an  order  of  publication,  is 
required,  and  the  record  before  us  is  by  no  means  silent 
as  to  publication.     In  that  case  no  proof  of  publication 


116  SUPKEME  COURT  CASES, 

Wright  V  Marsh,  Lee  &  Delavan. 

appeared  of  record ;  in  this  tlie  record  sets  forth  the  proofs 
and  publication,  but  they  are  alleged  to  be  insufficient  and 
defective,  consequently  they  could  be  regarded  even  in 
New  York  only  as  error,  as  voidable  but  not  void.  8  Cow. , 
370.  Denning  v.  Corwin  appears  to  have  been  decided 
on  the  ground  of  limited  jurisdiction,  but  even  on  thai, 
ground,  the  case  seems  to  have  lost  force  and  authority  in 
subsequent  decisions.  In  Foot  v.  Stevens,  17  Wend., 
483,  the  principle  prevailed  that  parties  against  whom 
judgment  was  rendered  shall  be  presumed  to  have  been 
regularly  before  the  court  unless  the  contrary  expressly 
appears;  and  in  Hart  v.  Seixas,  21  Wend.,  40,  the  court 
questioned  Denning  v.  Corwin,  and  held  that  the  parti- 
tion in  that  case  should  have  been  considered  voidable 
only  and  not  void;  and  in  Bloom  v.  Burdick,  1  Hill,  141, 
that  case  is  declared  to  have  been  overruled  so  far  as  the 
doctrine  is  asserted  that  the  judgment  of  a  superior  court 
will  be  void  if  the  record  does  not  show  jurisdiction.  The 
proof  of  notice  required  in  Denning  v.  Corwin,  is  also 
virtually  overruled  in  Butler  v.  Mayor  of  N.  Y.,  1  Hill, 
489,  in  which  it  was  held  that  due  notice  to  the  parties  of 
the  time  and  place  appointed  for  the  meeting  of  arbi- 
trators is  to  be  presumed  until  proved  that  it  was  not 
given.  In  this  case,  Judge  Cowen  remarks,  "  Even  that 
the  party  has  had  no  notice  would  be  an  oljjection  never 
yet,  I  apprehend,  allowed  in  such  case  against  the  infer- 
ence arising  on  the  record,  though  I  admit  there  are 
dicta  which  countenance  its  reception."  In  Cole  v.  Hall, 
2  Hill,  627,  we  find  a  case  in  point.  This  was  an  action 
of  ejectment,  in  which  the  defendant  offered  the  record 
of  a  partition  judgment  against  unknown  owners  who 
made  default,  and  a  partition  was  awarded.  The  com- 
missioners reported,  and  set  off  358  acres  of  the  land 
as  the  plaintiff's  half.  The  report  was  confirmed,  and 
judgment  of  partition  rendered,  with  an  award  of  $29.28 
costs  against  the  unknown  owners,  and  their  respective 
shares  were  sold  on  a  fi.  fa.  for  that  sum  to  the  plain- 
tiff in  the  i)nrtition  suit.     It  was  held  that  in  that  suit 


BURLINGTON,  MAY,  1849.  117 

Wright  V.  Marsh,  Lee  &  Delavan. 

the  plaintiff's  seizin  might  have  been  contested,  but  not  in 
the  collateral  proceedings.  And  in  relation  to  the  other 
objections,  Judge  Co  wen,  in  delivering  the  opinion  of  the 
court,  said,  "  But  it  was  said  on  the  argument  that  no 
proper  affidavit  was  made,  nor  any  notice  published,  and 
that  only  two  of  the  commissioners  met  and  deliberated. 
It  would  be  enough  to  answer  that  here  was  jurisdiction 
and  a  judgment,  that  such  matters  of  mere  irregularity 
cannot  be  enquired  into  collaterally."  And  in  a  case  still 
more  recent,  from  New  York,  principles  are  recognized 
which  show  an  affirmance  of  the  above  doctrine.  It  is  de- 
clared in  Bruen  v.  Hone^  2  Barb.,  596,  that  a  judgment 
or  decree  of  a  court  possessing  competent  jurisdiction  is 
final,  not  only  upon  matters  actually  decided,  but  also  upon 
matters  which  the  parties  to  the  cause  might  have  had  de- 
cided. The  court  also  held,  that  "after  a  recovery  by  pro- 
cess of  law,  there  must  be  an  end  of  litigation,  otherwise 
there  will  be  no  security  for  any  person."  And  again, 
they  assert,  "It  is  evidently  proper  to  prescribe  some 
period  to  controversies  of  this  sort,  and  what  period  can 
be  more  fit  and  proper  than  that  which  affords  a  fair  and 
full  opportunity  to  examine  and  decide  all  their  claims  ?" 
Surely  a  rule  so  salutary,  so  indispensable  to  the  protection 
of  property  in  the  hands  of  innocent  purchasers,  so  vital  to 
the  stability  of  courts  and  the  efficient  administration  of 
justice,  should  not  be  limited  to  controversies  of  any  par- 
ticular sort ;  it  should  be  universal  in  its  application.  It 
is  true,  that  if  the  proceedings  from  a  court  disclose  an 
absolute  want  of  jurisdiction  over  the  subject  matter,  or 
over  the  parties,  no  limitation  of  time  could  impart  vitality 
to  them.  But  a  want  of  jurisdiction  cannot  be  presumed. 
The  law  presumes  that  all  courts  proceed  with  authority 
and  correctness.  This  presumption  applies  with  jDeculiar 
force  to  courts  of  general  jurisdiction,  but  when  a  court 
proceeds  merely  in  a  ministerial  capacity,  or  under  a 
limited  authority,  defined  and  regulated  by  statute,  and 
when  certain  things  must  appear  to  have  been  done,  as 
preliminary  to  jurisdiction,  or  the  exercise  of  powers,  such 


118  SUPREME  COURT  CASES, 

Wright  V.  Marsh,  Lee  &  Delavan. 

presumption  does  not  obtain,  or  at  least  not  to  tlie  same 
extent,  and  therefore  authorities  in  relation  to  such  minis- 
terial and  inferior  proceedings  can  have  no  bearing  ujjon 
the  present  record,  and  need  not  be  examined.  Under  the 
foregoing  principles  of  law,  which  we  regard  as  well  set- 
tled and  influenced  by  the  various  authorities  cited  at  bar, 
we  are  united  in  the  conclusion  that  the  partition  record 
was  properl)^  admitted,  and  became  conclusive  evidence  of 
the  legal  rights  and  title  of  the  respective  parties  as 
therein  designated  ;  and  as  all  persons  were  made  parties 
to  the  partition  suit,  all  are  estopped  by  the  record  in  this 
proceeding.  In  arriving  at  this  conclusion,  it  necessarily 
follows  that  we  attach  no  importance  to  the  objection  that 
the  lialf-breed  tract  was  Indian  land,  and  not  subject  to 
the  territorial  legislation  of  Iowa.  We  think  that  the  state- 
ment of  facts,  and  the  reference  to  the  treaties  and  laws 
of  Congress  contained  in  this  opinion  in  relation  to  the 
lands,  are  all  the  arguments  necessary  to  show  that  they 
came  in  a  legitimate  and  conclusive  manner  under  our  ter- 
ritorial laws.  Since  the  act  of  Congress  of  1844,  how  can 
the  character  of  these  lands  be  questioned  ?  They  at  once 
acquired  all  the  characteristics,  all  the  advantages  and 
liabilities  of  individual  possessions,  they  became  in  law 
and  in  fact  the  property  of  individual  citizens,  and  not  of 
a  tribe  or  nation  of  Indians.  They  were  as  subject  to  the 
laws  of  the  country  and  the  adjudication  of  our  territorial 
courts,  as  any  other  lands  owned  by  citizens  within  the 
territory.  This  point  was  carefully  investigated,  and,  we 
think,  correctly  decided,  by  our  territorial  supreme  court  in 
J'eid  V.  Webster,  Morris,  467.  The  opinion  of  the  court 
in  that  case  needs  no  additional  argument  to  show  that 
the  laws  of  Iowa  are  properly  extended  over  the  half-breed 
tract. 

It  may  also  be  well  to  observe,  that  in  deciding  this  case 
we  have  attached  but  little  force  to  the  law  of  1845,  pro- 
viding "for  the  better  settlement  and  adjudicating  of  the 
several  titles  set  uj)  to  the  half-breed  lands  in  the  county 
of  Lee."     So  far  as  that  act  is  remedial  m  its  character  it 


BUHLINGTON,  MAY,  1849.  119 


Wright  V.  Marsh,  Lee  &  Delavan. 


should  be  enforced,  but  no  feature  in  it  can  be  considered 
valid  and  effectual  wbicb  would  have  a  tendency  to  destroy 
or  even  impair  vested  rights.  Consequently  any  record, 
judgment  or  decree,  which  would  have  been  evidence  of 
title  in  the  half-breed  tract  previous  to  the  enactment  of 
that  law,  cannot  by  virtue  of  anything  it  contains,  detract 
from  the  conclusiveness  of  such  evidence  since  its  passage. 
In  short,  no  statute  can  constitutionally  derogate  a  vested 
right.* 

Judgment  aflfirmed. 

Geo.  C,  Dixon,  for  plaintiff  in  error. 

J,  C,  Hall  and  Charles  Mason,  for  defendants. 

*  The  names  of  the  petitioners  and  defendants  in  the  partition  proceed- 
ings, and  the  shares  adjudged  to  each  as  modified  by  the  final  judgment,  may 
be  useful  to  the  many  who  are  interested  in  the  "half-breed  tract."  The 
following,  epitomized  from  the  record,  shows  the  names  of  all  the  parties, 
and  the  interest  to  which  each  became  entitled  under  the  judgment. 

The  defendants,  Marsh,  Lee  &  Delavan  forty-one  shares ;  John  Wright  one 
fourth  of  a  share ;  Cyrus  Peck  one  eighth  of  a  share;  Samuel  Abbott  and 
Abraham  Wendall  one  half  share;  William  Phelps  two  shares ;  Ebenezer  D. 
Ayres  one  half  share ;  William  Gillis  one  share  ;  Henry  McKee  one  share ; 
Wilson  Overall  one  share  ;  Garrett  V.  Deniston  one  half  share ;  James  L. 
Schoolcraft  one  half  share  ;  Elizabeth  Hunt  one  share ;  Rosella  0.  Gliem  one 
share;  Mary  L.  Murdock  one  share;  Eliza  0.  Perkins  one  share;  James  L. 
Burtis  one  share;  Margaret  Farrar  two  shares;  James  Muir  one  share; 
Thomas  Connelly  one  share ;  John  C.  Ward  one  half  share  ;  Elijah  Fisher, 
D.  W.  Kilbourn  and  Henry  S.  Austin  one  share ;  Edward  Kilbourn  one  half 
share  ;  John  Burtram  one  half  share ;  Edwin  Manning  one  q  uarter  of  a  share ; 
Edwin  Manning  and  Sheldon  Norton  one  half  share ;  Wright,  McDaniel  and 
Darrah  one  share  and  three-fourths ;  Manning  and  Horn  one  share ;  Augustus 
Gonville  one  share  ;  Benjamin  F.  Messenger  one  share;  the  heirs  of  Natha- 
niel Knapp  two  shares  and  seven-eighths;  Henry  Brown  one  eighth  of  a 
share;  William,  John  and  Dalzell  Smith  two  and  one  half  shares;  William 
H,  Smith  two  shares ;  John  H.  Lines  one  share  ;  William  Price  one  share  ; 
Charles  Thompson  one  share;  and  one  share  reserved  for  Euphrosine  Antaya, 
subject  to  proof. 

The  shares  of  the  several  petitioners  are  designated  as  follows :  Josiah 
Spalding  one  share  and  three-eighths;  Archibald  Gamble  one  share  and  one- 
eighth  ;  Patrick  Walsh  one  share ;  Etienne  Provost  one  half  share;  J.  and  E. 
Walsh  two  shares  and  seventeen  one  hundred  and  twentieths  of  a  share; 
heirs  of  Henry  K.  Ortley  two  fifths  of  a  share ;  Green  Erskine  one  share  and 
seventeen  twenty-fourths  of  a  share ;  Joseph  llidgway,  trustee  of  Geo.  Patch 


120  SUPREME  COURT  CASES. 

Roberts  v.  Albright. 

one  third  of  a  share  ;  Herman  C.  Cole  one  fourth  of  a  share ;  Stephen  Gore 
one  eighth  of  a  share;  John  B.  Sarpy  one  third  of  a  share;  Edmond  H. 
McCabe  one  third  of  a  share ;  Hugh  Lunutty  one  share ;  James  R.  McDonald 
one  share  ;  Joseph  W.  Walsh  one  share  ;  John  0.  Rourke  one  half  share  ; 
Antoine  Gracia  and  Margaret  his  wife  one  half  share  ;  Angelique  La  Gutlnie, 
now  Mattabon,  one  half  share  ;  Michael  Tesson  one  share  ;  heirs  of  Otis 
Reynolds  eleven  twenty  fourths  of  a  share  ;  Heirs  of  James  A.  H.  Palmer 
one  third  of  a  share;  Geo.  H.  Crosman  five  sixths  of  a  share;  and  Antoine 
Le  Claire  six  shares  and  three  eighths  of  a  share. 


ROBERTS  V.  ALBRIGHT. 

Replication  demurrable  if  it  does  not  traverse  the  material  allegations  of  the 

plea. 
A  nonsuit  for  failing  to  reply  to  pleas,  when  an  issue  in  fact  is  joined  on 

another  plea  is  erroneous. 

Error  to  Henry  District  Court. 

Opinion  by  Williams,  C.  J.  This  is  an  action  on  the 
case  for  a  libel,  commenced  in  the  district  court  of  Lee 
county.  Venue  changed  to  Henry,  and  trial  at  May  term, 
1847.  Defendant  filed  his  plea  of  general  issue,  and 
thirteen  special  pleas.  Plaijitiff  demurred  to  each.  The 
court  sustained  the  demurrer  to  all  the  defendant's  pleas, 
except  numbers  five,  seven,  and  eleven.  Plaintiff  filed  re- 
plications to  said  pleas.  Whereupon  defendant  filed  his 
demurrer  to  the  replications.  The  court  sustained  the 
demurrers  to  replications  to  fifth  and  eleventh  pleas,  and 
overruled  that  to  the  replication  to  the  seventh  plea.  The 
plaintiff  .failing  to  reply  to  the  fifth  and  eleventh  pleas, 
the  court  rendered  a  judgment  of  nonsuit. 

The  plaintiff  in  error  has  filed  the  following  assignments 
of  error:  1.  The  court  erred  in  sustaining  the  defendant's 
demurrer  to  plaintiff's  replications  to  fifth  and  eleventh 
pleas.  2.  The  court  erred  in  rendering  judgment  of  non- 
suit against  plaintiff  on  the  entire  case,  while  issues  re- 


BURLINGTON,  MAY,  1849  121 

Koberts  v.  Albright. 

mained  on  plea  of  general  issue.  The  certified  record  is 
in  a  confused  and  irregular  condition,  so  that  it  is  with 
much  difficulty  that  this  court  can  arrange  it  for  a  satis- 
factory examination.  The  replications  to  the  fifth  and 
eleventh  pleas  we  think  were  properly  demurrable,  as  they 
were  not  in  fact  responsive  ;  they  did  not  directly  traverse 
the  material  allegations  of  the  pleas  so  as  to  form  a 
perfect  issue  ;  but  as  the  case  must  be  reversed  upon  the 
second  assignment  of  error,  we  do  not  deem  it  necessary 
to  discuss  this  point  at  large.  We  will  only  say  that  the 
pleas  were  upon  demurrer  declared  good  by  the  court. 
They  contravene  several  matters,  part  of  which  were  of 
record,  and  some  of  fact,  dehors  the  record,  all  of  which 
should  have  been  specially  denied  or  traversed  by  the 
replications. 

1.  All  the  material  allegations  in  the  pleas  should  have 
been  denied.  In  the  case  at  bar,  the  pleas  set  out  particu- 
lar facts  in  answer  to  the  declaration,  and  the  plaintiff 
replies  by  a  conclusion  or  inference  of  law.  This  is  not 
allowable,  as  no  issue   of  fact  is   thereby  made  for  the 

2.  It  is  objected  that  the  demurrer  to  the  replication  to 
the  seventh  plea  was  overruled,  and  a  judgment  of  nonsuit 
rendered  against  the  jDlaintiff,  while  there  was  an  issue 
pending  on  the  seventh  plea.  This  could  not  be  legally 
done.  The  issue  was  for  the  jury,  and  could  not  have 
been  so  disposed  of.  Judgment  for  the  defendant  should 
have  been  entered,  upon  sustaining  his  demurrer  to  pleas 
five  and  eleven,  upon  failure  of  plaintiff  to  reply  to  them. 
But  the  remaining  issue  of  fact  made  by  plea  number 
seven,  and  the  replication  thereto,  should  have  been  tried. 
Hereford  v.  Crow,  3  Scam.,  425 ;  McAden  v.  Gibson^  5 
Ala.,  341. 

Judgment  reversed. 

D,  Rorer  and  H.  W.  Starr,  for  plaintiff  in  error. 

J,  C.  Hall  and  Geo,  C.  Dixon,  for  defendauL 
Vol.  II.  9 


122  SUPREME  COURT  CASES, 

Roberts  v.  Miller. 


ROBERTS  V.  MILLER. 

In  action  for  libel,  where  M.  published  that  R.  was  a  defaulter,  a  mortgage 
executed  by  li.  to  the  United  States,  and  the  record  of  foreclosure,  are 
admissible  as  evidence  of  K.'s  indebtedness  to  the  government. 

Any  action  by  Congress  or  the  departments  of  government,  subsequent  to 
the  libellous  publication,  not  admissible  as  rebutting  evidence. 

Error  to  Henry  District  Court. 

Opinion  hy  Kinney,  J.  This  was  an  action  on  the  case 
to  recover  damages  for  the  publication  of  a  libel.  Roberts 
in  his  declaration  sets  out  that  Miller,  on  the  30th  day  of 
July,  1844,  published  of  and  concerning  the  plaintiff  the 
following  false,  malicious  and  defamatory  matter,  to  wit : 
"  Witness,  that  B.  S.  Roberts,  at  present  the  leader  of  the 
clique,  a  notorious  public  defaulter  to  a  large  amount,"  &c. 

The  defendant  pleaded  the  general  issue  with  special 
pleas.  The  cause  was  tried  in  Henry  county  upon  change 
of  venue,  and  as  the  pleas  were  lost,  the  plaintiff  agreed 
that  the  defendant  might  file  the  plea  of  general  issue 
nunc  pro  tunc^  and  give'  in  evidence  anything  which  could 
have  been  specially  pleaded.  With  this  arrangement  the 
parties  went  to  trial.  The  plaintiff  gave  in  evidence  to 
the  jury  the  publication  of  the  libel  as  described  in  the 
declaration. 

The  defendant  then  offered  in  evidence :  1.  A  bill  of 
complaint  filed  on  the  part  of  the  United  States  for  the 
foreclosure  of  a  deed  of  defeasance  given  by  Roberts  to 
the  government. 

2.  The  deed  of  defeasance,  whereby  Roberts,  as  late 
lieutenant  in  the  army  of  the  United  States,  and  assistant 
commissary  and  acting  assistant  quarter-master,  mort- 
gaged to  the  government  certain  "  half-breed  lands,"  on 
the  10th  of  April,  1839. 

3.  The  answer  of  Roberts,  which  admitted  the  charges 
in  the  bill. 


BURLINGTON,  MAY,  1849.  123 

Roberts  v.  Miller. 

4.  The  transcript  of  a  decree  in  the  district  com-t  of  Lee 
county,  by  which  it  appears  that  a  decree  upon  the  mort- 
gage for  $4699.12,  was  rendered  in  favor  of  the  govern- 
ment against  Roberts,  and  that  the  equity  of  redemption 
to  the  mortgage  property  was  foreclosed. 

The  defendant  also  offered  in  evidence  a  deed  from 
Roberts  to  Akin  and  others,  dated  5th  May  1837,  (prior 
to  the  execution  of  the  mortgage,)  conveying  to  them  the 
premises  described  in  the  mortgage  to  the  government. 

This  evidence  was  allowed  by  the  court  to  be  read  to  the 
jury ;  whereupon  the  plaintiff  filed  his  first  bill  of  excep- 
tions. 

The  plaintiff  then  offered  in  evidence  certain  documents 
emanating  from  the  departments  at  Washington,  in- 
cluding letters  from  distinguished  individuals,  recom- 
mending to  the  President  the  restoration  of  Roberts  to 
the  army.  Among  them  is  a  report  from  the  judiciary 
committee  of  the  Senate  and  House  of  Representatives, 
dated  in  1845,  reporting  a  bill  for  the  relief  of  Roberts, 
and  also  asking  for  his  restoration  to  his  former  rank  in 
the  army  as  an  act  of  justice.  This  report  of  the  com- 
mittee is  based  upon  the  fact  that  at  the  time  the  specie 
circular  of  1836  went  into  operation,  Roberts,  as  a  dis- 
bursing officer,  had  a  large  amount  of  bank  notes  in  his 
possession,  upon  a  bank  which  suspended  specie  payment, 
and  therefore  they  were  unavailable  funds.  The  committee 
say,  upon  a  thorough  examination  of  all  the  circumstances 
in  the  case,  they  came  to  the  conclusion  that  Mr  Roberts 
had  been  guilty  of  no  acts  impeaching  his  honor  and  in- 
tegrity as  an  officer,  and  that  his  official  acts  aimed  at  the 
good  of  the  service,  and  the  faithful  application  of  the 
public  funds  in  his  hands,  &c.  This  report  is  signed  by  the 
committee,  and  concurred  in  by  senators  Walker  and  Dix. 

Tlie  plaintiff"  also  offered  in  evidence  a  document  from 
the  treasury  department,  purporting  to  be  a  settlement  of 
the  account  of  Roberts  as  lieutenant,  &c.,  during  the 
years  1836-7-8  and  9,  in  which  Roberts  is  charged  with 
$424.82,  and  credited  with  a  like  sum.    All  of  these  docu- 


124  SUrJlEME  COURT  CASES, 


Rolierts  v.  Miller. 


ments,  report,  certificates,  letters,  &c.,  were  offered  con- 
jointly and  separatel}',  but  they  were  all  excluded  from 
the  jury,  which  forms  the  basis  for  the  plaintiff's  second 
bill  of  exceptions. 

A  verdict  was  rendered  in  favor  of  the  defendant,  and 
the  plaintiff  in  error  assigns  the  ruling  of  the  court  per- 
mitting the  evidence  to  go  to  the  jury  as  set  out  in  his 
first  bill  of  exceptions,  and  the  exclusion  of  the  evidence 
offered  by  him  in  his  second  bill,  for  error. 

We  ^think  the  evidence  offered  by  the  defendant  was 
properly  admitted.  By  the  latitude  extended  to  him  by 
the  plaintiff,  such  evidence  could  not  well  be  excluded 
from  the  consideration  of  the  jury.  Under  a  special  plea 
it  would  have  been  competent  for  the  defendant  to  intro- 
duce evidence  tending  to  show  the  defalcation,  and  thus 
justify  the  publication.  The  bill,  answer,  mortgage  and 
decree,  were  matters  of  public  record,  and  these  were  at 
least  prima  facie  evidence  of  the  indebtedness  to  the 
government.  They  upon  their  face  show  that  the  indebt- 
edness accrued  in  a  fiduciary  capacity.  The  mortgage  is 
given  by  Roberts  as  late  lieutenant  in  the  army,  and 
assistant  commissary  and  quarter-master.  The  capacity 
in  which  Roberts  stood  indebted  to  the  government  fully 
appeared.  This  was  notorious,  it  was  of  record,  fully 
admitted  and  confessed  by  the  answer  of  Roberts,.  The 
deed  to  Akm  and  others  was  proper  evidence,  as  the 
indebtedness  might  be  presumed  to  be  secured  by  the 
mortgage.  But  this  shows  that  the  land  was  not  liable 
to  mortgage,  Roberts  having  j)reviously  conveyed  the 
same  by  deed  to  Akin ;  consequently  at  the  time  of  the 
publication  as  appeared  from  the  records  taken  together, 
Roberts  in  his  official  character  still  appeared  to  be  a 
government  debtor  to  a  large  amount ;  therefore  in  this 
rulins:  of  the  court  there  is  no  error. 

The  plaintiff,  as  rebutting  evidence,  offered  the  report, 
letters  and  documents  before  referred  to,  none  of  which 
we  think  could  have  been  permitted  to  be  read  to  the  jury. 
The  report  of  the  judiciary  committee  bears  date  in  1845, 


BURLINGTON,  MAY,  1849.  125 

Wilson  V.  Albright. 

subsequent  to  the  date  of  the  mortgage,  the  decree  and  the 
publication  of  Miller.  Miller  relies  as  a  justification  upon 
the  public  records  of  the  county  showing  the  deficit,  and 
any  action  that  Congress  may  have  taken  after  the  publi- 
cation could  not  be  introduced  as  evidence  to  defeat  a  plea 
of  justification  predicated  uj^on  the  record  as  showing  a 
prior  deficit  or  defalcation. 

The  document  purporting  to  have  been  a  settlement, 
includes  the  years  183C-7-8  and  9.  We  cannot  see  how 
this  can  explain  or  rebut  the  presumption  of  defalcation, 
as  made  by  E-oberts's  own  confession -in  1844,  and  which  at 
the  time  the  alleged  libellous  matter  was  published,  was  a 
matter  of  evidence  against  Roberts  upon  the  record.  The 
other  documentary  evidence  ofi'ered,  referred  to  in  the  bill 
of  exceptions,  does  not  require  comment.  It  is  not  neces- 
sary to  adduce  reasons  in  support  of  a  decision,  the  correct- 
ness of  which  cannot  well  be  questioned. 

Judgment  affirmed. 

D.  Rorer,  for  plaintifi"  in  error. 

J.  C.  Hall  and  Geo.  C.  Dixon,  for  defendant. 


WILSON  V.  ALBRIGHT. 

Where  the  transcript  of  a  justice  does  nof  set  forth  the  judgment  in  Tioae 
verba,  but  coutains  sufficient  to  show  its  character,  its  amount  and  against 
wliom  it  was  rendered,  it  is  sufficient  to  give  the  court  jurisdiction. 

A  judgment  will  not  be  reversed  for  a  mere  diminution  of  the  record  which 
might  have  been  perfected. 

One  of  two  joint  obligors  not  liable  in  a  proceeding  of  garnishment. 

Judgment  cannot  be  rendered  against  a  garnishee  upon  his  liability  before 
it  becomes  due. 

Gai.-iishee  under  no  greater  liability  to  his  garnishor,  than  he  would  be  to 
his  creditor. 

A  garnishee  holding  a  note  for  collection,  is  not  liable  as  holder  of  the  note, 


126  SUPREME  COURT  CASES, 

Wilson  V.  Albright. 

nor  on  the  receipt  he  gave  for  the  note,  without  a  previous  demand  and  a 
refusal  to  deliver  up  the  note,  and  the  amount  collected  on  the  note. 

Judgment  cannot  he  rendered  against  garnishee  unless  he  acknowledge  an 
indoljtedness. 

A  judgment  taken  to  the  district  court  by  writ  of  certiorari  may  be  reversed. 

Error  to  Lee  District  Court. 

Opinion  by  Greene,  J.  Perry  AVilson  &  Co.  obtained 
a  judgmeut  against  Samuel  S.  White,  before  a  justice  of 
the  peace,  on  which  execution  was  issued,  with  a  garnishee 
clause,  against  William  G.  Albright.  On  the  return  day, 
March  10,  1847,  Albright  appeared  before  the  justice,  and 
in  reply  to  interrogatories  answered  in  substance,  that  he 
had  no  goods,  money  or  effects  belonging  to  the  defendant 
in  his  possession  or  under  his  control ;  but  that  on  the  1st 
day  of  April  1845,  J.  W.  and  W.  G.  Albright  gave  their 
note  to  S.  S.  White  or  order  for  $225,  payable  in  two 
years  after  date;  that  said  White,  befor'e  leaving  the 
country,  deposited  the  note  with  him,  and  took  his  receipt 
for  the  same ;  and  that  the  note  is  still  in  his  possession. 
Upon  this  answer  alone,  it  appears  that  the  justice  rendered 
judgment  against  W.  G.  Albright  as  garnishee  ;  but  on 
being  brought  to  the  district  court  by  certiorari,  this  judg- 
ment was  reversed. 

1.  It  is  urged  for  the  plaintiffs  in  error,  that  the  district 
court  erred  in  reversing  the  judgment  of  the  justice,  as  it 
did  not  appear  by  his  returns  to  the  certiorari  what  that 
judgment  was.  It  is  true  that  the  specific  form  of  the 
judgment  is  not  set  forth  by  the  retm-ns  of  the  justice  in 
h(sc  verba,  but  still  sufficient  is  contained  in  the  affidavit, 
writ  and  returns,  to  leave  no  doubt  that  judgment  was 
rendered  by  the  justice  against  the  garnishee  for  the  sum  of 
$43,  the  amount  of  the  judgment  against  S.  S.  White  in 
favor  of  Perry  Wilson  &  Co.  This  was  sufficient  to  give 
the  court  jurisdiction.  Besides  the  necessary  legal  pre- 
sumption that  the  court  below  had  before  it  the  proceedings 
of  the  justice,  and  all  the  material  facts  in  due  form,  upon 
which  to  predicate  an  enlightened  decision,  it  appears  by 
the  bill  of  exceptions,  that  the  papers  on  file  in  the  case 


BURLINGTON,  MAY,  1849.  127 

Wilson  V.  Albright. 

with  the  facts  as  they  appeared  of  record,  were  submitted 
to  the  consideration  of  the  court,  and  upon  these  the  judg- 
ment of  reversal  was  rendered.  It  has  repeatedly  been 
decided  by  this  court,  that  a  judgment  cannot  be  reversed 
by  reason  of  any  diminution  in  the  transcript  of  the  record. 
If  defective,  the  plaintiff  should  have  it  perfected ;  and  if 
it  be  not  perfected,  the  correctness  of  the  proceedings 
below  must  necessarily  be  j)resumed. 

2.  The  second  assignment  claims  that  the  court  erred  in 
reversing  the  judgment  of  the  justice,  because  the  answers 
of  the  garnishee  show  that  he  was  liable. 

The  decision  of  the  district  court  was  doubtless  mainly 
predicated  on  the  facts  :  1.  That  the  note  given  by  J.  W. 
and  W.  G.  Albright  was  a  joint  obligation,  not  due,  nor 
in  the  possession  of  the  payee,- at  the  time  judgment  was 
rendered  against  W.  G.  Albright,  one  of  the  joint  makers. 
It  is  conceded  that  one  of  two  joint  obligors  cannot  be  held 
liable  in  a  proceeding  of  garnishment,  on  an  indebtedness 
exclusively  joint.  2.  The  note  was  not  due.  It  is  clear 
that  to  justify  such  a  judgment,  there  must  have  been  an 
actual  pending  indebtedness  from  the  garnishee  to  the 
execution  defendant,  and  not  merely  a  liability  to  pay  at 
some  future  day.  The  language  of  the  statute  is,  "  That  if 
any  such  garnishee  shall  be  found  to  be  indebted  to  the 
defendant  in  any  such  execution,  a  judgment  shall  be  ren- 
dered against  such  garnishee  for  the  amount  for  which  he 
admits  himself  indebted  in  his  said  answer,  or  so  much 
thereof  as  will  satisfy  any  such  execution."  This  is  explicit, 
and  leaves  no  room  to  doubt  that  a  judgment  cannot  legally 
be  rendered  against  a  garnishee  on  a  liability  not  due. 
It  has  been  decided  by  our  territorial  supreme  court,  that 
the  maker  of  a  negotiable  instrument  cannot  be  made  liable 
on  a  garnishee  process  unless  the  instrument  is  due,  and 
shown  to  be  in  possession  of  the  execution  defendant. 
Jefferson  County  v.  Fox  et  al.^  Morris,  48.  A  decision  so 
conformable  to  justice  and  the  true  meaning  of  the  statute, 
cannot  be  disturbed.  It  would  appear  repugnant  even  to 
the  weakest  conception  of  right,  to  place  a  garnishee  under 


128  SUPREME  COURT  CASES, 

Wilson  V,  Albright. 

e^reater  liabilities  to  the  garnislior  than  he  would  be  under 
to  his  creditor. 

But  plaintiff's  counsel  contends  that  the  garnishee  in 
this  case  was  liable  as  holder  of  the  note,  and  on  the  receipt 
he  gave  when  the  note  was  placed  in  his  possession. 
Giving  a  receipt  for  a  note  deposited  with  him  for  safe 
keeping,  or  for  collection,  could  not  of  itself  create  a 
pending  indebtedness,  nor  render  him  liable  as  garnishee. 
Independent  of  the  consideration  that  White's  beneficial 
interest  in  the  receipt  may  have  been  transferred,  we  must 
conclude  that  if  Albright  was  not  liable  in  an  action  to 
White  on  the  receipt,  without  previous  demand  and  refusal 
to  deliver  up  the  note,  or  the  amount  collected  thereon,  he 
certainly  could  not  be  held  amenable  as  garnishee. 

Again,  it  is  urged  that  the  note  should  be  regarded  as 
property  or  effects  of  White  in  the  hands  of  Albrigl.t. 
But  even  admitting  it  in  that  light,  the  proceedings  of 
the  justice  appear  equally  objectionable.  Under  the  7th 
article,  and  10th  section  of  the  justice's  act,  a  judgment 
can  be  rendered  against  the  garnishee  for  such  amount 
only  as  he  may  acknowledge  himself  indebted.  And  in 
the  attachment  clause  of  the  same  act,  article  9,  §  19,  it  is 
provided,  that  issues  between  the  plaintiff  and  garnishee 
shall  be  tried  as  ordinary  issues  between  plaintiff  and 
defendant ;  and  if  on  the  trial  of  any  such  issue,  property 
or  effects  shall  be  found  in  the  hands  of  the  garnishee, 
the  justice  or  jury  shall  assess  the  value  thereof,  and  the 
judgment  shall  be  for  the  amount  in  money.  Though  this 
section  is  arranged  under  the  article  headed  "  attachment,^* 
its  provisions  appear  to  extend  generally  to  proceedings  of 
garnishment,  and  a  judgment  for  property  or  effects  in  the 
hands  of  a  garnishee  can  be  rendered  only  in  conformity 
to  its  provisions.  Judgment  cannot  be  rendered  against 
a  garnishee,  unless  he  acknowledge  indebtedness.  E-ev. 
Stat,  331,  §  10. 

3.  It  is  assigned  as  error,  that  the  court  rendered  a  judg- 
ment of  reversal  on  a  writ  of  certiorari,  where  judgment 
should  have  been  according  to  the  very  right  of  the  cause. 


BURLINGTON,  MAY,  1849.  129 

Rife  V.  Pierson. 

either  for  the  plaintiff  or  defendant.  We  cannot  believe 
that  this  objection  is  urged  with  much  seriousness.  Though 
the  statute  requires  the  district  court  in  such  cases  to  give 
judgment  as  the  right  of  the  matter  may  appear,  it  also 
provides  that  the  judgment  may  be  affirmed  or  reversed, 
in  whole  or  in  part.  But  even  if  limited  to  the  "  very 
riglit  of  the  matter,"  such  right  would  often  require  an 
unqualified  reversal  or  affirmance. 

No  sufficient  reason  appears  for  disturbing  the  judgment 
of  the  district  com't  in  this  case. 

Judgment  affirmed. 

L.  R.  Reeves,  for  plaintiff  in  error. 

D.  F.  Miller,  for  defendant. 


RIFE  V.  PIEUSON. 


Where  the  transcript  of  a  justice  describes  a  note  to  be  dated  April  12,  when 
the  note  offered  in  evidence  is  dated  April  2,  but  is  otherwise  identified  as 
the  note  upon  which  suit  was  brought,  the  variance  is  not  fatal. 

Error  to  Des  Moines  District  Court. 

Opinion  by  Williams,  C.  J.  John  Pierson  sued  Abra- 
ham Rife  in  debt  before  a  justice  of  the  peace.  His 
action  was  brought  on  two  due  bills,  the  one  dated  the  2d 
of  April  1846,  and  calling  for  $50  with  10  per  cent, 
interest,  and  a  credit  endorsed  thereon  for  |3.  Judg- 
ment was  entered  by  default  for  the  plaintiff  for  $90.95 
and  costs.  The  defendant  took  an  appeal  to  the 
district  court  of  Des  Moines  county,  and  the  plaintiff 
recovered  a  judgment  against  defendant,  and  Rodney 
Arnold,  his  bail,  on  the  appeal,  in  accordance  with  the 
statute,  for  the  sum  of  $94.96  damages  with  costs. 


130  SUPilEME  COURT  CASES, 

Rife  V.  Pierson. 

The  bill  of  exceptions  shows,  that  on  the  trial  in  the 
district  court,  the  plaintiff  offered  in  evidence  a  due  bill 
di'awn  in  his  favor  by  the  defendant,  on  the  back  of  which 
were  endorsed  the  words  and  figiu-es,  "  Filed  Nov.  3,  '47, 
A.  Ingraham,  J.  P."  The  defendant's  counsel  objected  to 
the  note  going  in  evidence  to  the  jury,  on  the  ground  that 
it  was  not  the  same  note  which  was  before  the  justice 
before  whom  the  suit  was  instituted  and  tried  originally. 
That  therefore  it  was  a  new  and  different  "  cause  of  action" 
which  was  not  tried  there.  The  only  variance  relied  on 
to  support  the  objection  is  found  by  reference  to  the  date 
of  the  instrument,  and  the  description  entry  thereof,  made 
by  the  justice  in  his  transcript.  The  note  bears  date  the 
"2d  of  April  1846,"  whereas  the  transcript  describes  it 
as  of  the  date  of  "April  12,  1846."  In  all  other  re- 
spects it  is  correctly  described.  Is  this  a  fatal  variance  ? 
We  think,  as  the  case  is  presented,  it  is  not.  It  is  true  it 
is  required  by  Rev.  Stat.,  335,  §  15,  that  the  "same  cause 
of  action"  only  could  be  sustained  and  tried  by  the  dis- 
trict com't  on  the  appeal.  But,  in  a  proceeding  of  this 
kind,  will  it  be  contended  that  the  district  court  is  bound, 
with  strict  and  7igid  precision,  to  confine  itself  to  the  tran- 
script of  the  justice  alone,  to  ascertain  whether  the  instru- 
ment offered  in  evidence  to  support  the  plaintiff's  action 
be  the  same  which  was  filed  with  the  justice  at  the  com- 
mencement, as  "  the  cause  of  action?  "  If  so,  a  single 
clerical  mistake  of  the  justice,  who  may  not  be  very  apt 
in  describing  with  minuteness  an  instrument  of  writing 
of  this  kind,  may  operate  to  defeat  the  obvious  design  of 
the  statute,  which  saves  the  case  of  a  party  upon  appeal 
from  defeat,  for  "  errors,  defects  or  imperfection  in  the 
proceedings  of  the  justice."     Rev.  Stat.,  335,  §  7. 

The  due  bill  itself  is  sent  up  with  the  transcript  among 
the  papers  of  the  case,  and  is  endorsed,  "  Filed  Nov.  3, 
1847  " — which  endorsement  is  signed  by  the  justice  in  his 
official  capacity.  The  sum  of  money  called  for,  the  rate 
of  interest,  the  month  and  year,  ai'e  all  correctly  stated  in 
the  transcript. 


BUHLINGTON,  MAY,  1849.  131 

Austin  &  Spicer  v.  Carpenter. 

In  actions  before  justices  of  tlie  peace,  the  plaintiff  is 
not  required  to  file  a  declaration,  so  that  the  rules  of  prac- 
tice in  relation  to  variance  between  the  allegations  in  the 
declaration  and  the  evidence  offered,  will  not  apply.  The 
record  of  the  justice  is  not  to  be  taken  as  the  plaintiffs 
declaration  in  the  case.  The  instrument  showing  indebt- 
edness is  instead  of  a  declaration,  and  when  filed  in 
the  case  is  a  component  part  of  the  record.  It  comes 
up  with  the  record,  authenticated  in  the  same  way  that 
the  transcript  and  other  proceedings  are,  by  the  attestation 
of  the  justice.  Coming  in  this  way  into  the  district  court, 
and  being  an  authenticated  part  of  the  case  with  the 
proceedings,  w^e  think  it  bears  its  own  mark  of  identity ; 
and  it  must  be  taken  as  the  instrument  upon  which  the 
suit  was  brought  originally  before  the  justice.  We  con- 
sider the  variance  a  mere  mistake  of  the  justice,  in  describ- 
ing the  instrument  in  his  transcript,  which  is  sufficiently 
apparent  under  the  cu'cumstances,  and  that  it  is  cured  by 
the  statute. 

The  argument  that  the  defendant  may  be  sued  again,  and 
that  a  former  recovery  could  not  be  shown  in  defence,  is 
answered  by  the  fact  that  the  instrument  is  of  record  in  this 
case  by  the  filing  under  attestation,  and  will  so  remain. 

Judgment  affirmed. 

D.  EoreTj  for  plaintiff  in  error. 

Grimes  and  Starr ^  for  defendant. 


"&' 


AUSTIN  &  SPICEE  v.  CAKPENTER  et  aL 

Equity  will  afford  relief  to  those  who  are  indirectly  injured  by  official  fraud 
or  misconduct,  as  well  as  to  those  who  are  directly  injured  by  such  fraud. 

The  rule  that  a  judgment  will  not  be  reversed  where  the  error  does  not 
athrmatively  appear  of  record,  applies  to  cases  at  law,  and  not  to  appeala 
in  chancery. 


132  SUPREME  COURT  CASES, 

Austin  &  Spicer  v.  Carpenter. 


In  Equity.     Appeal  from  Des  Moines  District  Court. 

Opinion  hy  Kinney,  J.  It  appears  from  tlie  record  in 
this  case,  that  the  appellants,  Austin  &  Spicer,  in  the  fall 
of  1845,  commenced  a  suit  against  one  Edwin  Wilcox ; 
that  they  sued  out  an  attachment,  and  that  Postlewait, 
Coolbaugh  &  Garrett  became  sureties  in  the  attachment 
bond.  Judo^ment  was  afterwards  rendered  in  favor  of 
complainants  against  said  Wilcox.  The  goods  attached 
were  sold  upon  execution,  Francis  J.  C.  Peasley  being  the 
purchaser,  and  he  was  ordered  by  the  court  to  pay  the 
costs  that  had  accrued  upon  said  suit  out  of  the  proceeds 
of  said  sale. 

In  February  1848,  Wilcox,  for  the  use  of  Anthony  W. 
Carpenter,  commenced  a  suit  before  James  R.  Fayer- 
weather,  a  justice  of  the  peace,  against  the  said  Postlewait, 
Coolbaugh  &  Garrett  for  the  costs  in  the  attachment 
suit,  and  recovered  judgment. 

•  A  bill  in  chancery  was  then  filed,  enjoining  said  Car- 
penter, Fayei'weather,  and  Harris,  the  constable,  from  the 
collection  of  said  judgment. 

In  the  district  court  the  bill  was  demurred  to,  the 
demurrer  sustained,  the  injunction  dissolved,  and  the  bill 
dismissed. 

The  complainants  appeal  to  this  court,  and  assign  for 
error  this  ruling  of  the  court. 

The  demurrer  liaving  admitted  the  facts  set  forth  and 
charged  in  the  bill,  which  were  well  pleaded,  to  be  true, 
we  have  only  to  examine  the  bill  to  ascertain  whether  it 
exhibits  such  a  case  as  will  entitle  the  complainants  to  the 
interference  and  aid  of  a  Court  of  equity. 

It  was  urged  by  counsel  for  the  appellees  in  the  argu- 
ment, that  the  court  would  not  look  into  the  merits  of  the 
case,  as,  by  the  chancery  act,  the  court  were  compelled  to 
dismiss  the  bill,  for  the  reason  that  the  complainants  did 
not  appear  and  prosecute  the  suit.     This  position  is  not 


BURLINGTON,  MAY,  1849.  133 

Austin  &  Spicer  v.  Carpenter. 

sustained  loj  the  record,  whicli  shows  that  the  cause  came 
up  to  be  heard  upon  the  defendant's  demurrer  to  the  com- 
pkiinants'  bill,  whereupon  all  and  singular,  the  premises 
being  seen  and  heard,  &c.,  the  injunction  was  dissolved 
and  the  bill  dismissed.  It  is  conclusive,  from  the  record, 
that  the  bill  was  tried  upon  the  demurrer  and  dismissed 
for  the  want  of  equity,  and  not  pro  Jbrma,  as  was  urged 
in  the  argument. 

Looking  into  the  bill,  we  find  that  it  sets  forth  in  sub- 
stance that  the  attachment  against  Wilcox  was  sustained ; 
that  the  sureties  thereby  became  absolved  from  the  pay- 
ment of  costs  upon  their  bond ;  and  that  Peasley  was 
ordered  to  pay  all  costs  which  accrued  in  said  suit. 

The  bill  also  states,  that  when  the  suit  for  the  collection 
of  costs  against  said  sureties  was  about  to  be  tried,  the 
counsel  for  complainants  appeared  in  order  to  defend,  but 
said  Justice  Fayerweather  refused  to  let  him  do  so ;  that 
said  sureties  did  not  appear,  expecting  said  Austin  &  Spicer 
to  do  so,  and  defend  said  suit.  The  complainants  also 
state,  that  the  case  would  have  been  appealed  had  not  the 
justice  informed  their  attorney  that  the  same  was  settled, 
and  would  not  be  pursued.  Fraud  is  chai'ged  in  the  ren- 
dition of  the  judgment,  and  it  is  charged  that  the  justice 
acted  contrary  to  good  faith,  &c. 

It  is  not  necessary  for  this  com't,  sitting  in  chancery, 
to  decide  whether  the  defendants  before  the  justice  had  a 
good  defence  at  law,  nor  does  it  become  material  in  the 
view  in  which  this  case  is  presented  to  our  minds.  But 
it  is  proper  to  ascertain  whether  Austin  &  Spicer  had  a 
right  to  appear  and  defend  the  suit,  and  whether  they 
were  improperly  deprived  of  then-  appearance  and  defence 
by  the  misconduct  of  the  justice.  The  defendants  before 
the  justice,  although  the  real  parties,  were  only  nominally 
so  in  interest,  as  they  would  have  their  action  over  against 
the  principals  in  the  bond  for  any  judgment  that  might 
be  recovered  against  them. 

Although  the  appellants  were  not  party  defendants,  yet 
it  became  important  for  them  to  protect  their  sureties  from 


134  SUPREME  COURT  CASES, 

Austin  &  Spicer  v.  Carpenter. 

any  judgment,  and  thus  preserve  themselves  from  a  liabil- 
ity wliich  would  necessarily  result  in  favor  of  the  sureties 
if  judgment  were  rendered  against  them  ;  and  we  see  no 
impropriety  in  their  conducting  the  defence,  particularly 
as  the  sureties  did  not  defend,  expecting  that  the  counsel 
for  Austin  &  Spicer  would  do  so.  But  the  justice  appears 
to  have  been  unnecessarily  technical,  and  to  have  shut 
out  the  defence,  from  honest  motives  we  would  presume, 
if  it  were  not  otherwise  charged  in  the  bill. 

If  the  bill  did  not  state  that  the  defence  was  left  to  the 
appellants,  or  in  language  which  is  equivalent  to  it,  we 
might  come  to  a  different  conclusion ;  for,  as  a  general 
rule,  the  parties  only  to  a  suit  have  the  right  to  defend. 
But  the  justice  not  only  prevented  them  from  defending, 
but,  after  judgment  was  rendered  and  an  appeal  applied 
for,  informed  the  counsel  that  the  case  was  settled,  and 
would  not  be  pursued,  thus  depriving  them  of  the  benefit 
of  an  appeal,  as  the  execution  upon  the  judgment  was 
retained  until  after  the  time  for  appeal  had  expired.  If 
such  conduct  as  this  in  a  public  officer,  acting  in  an  official 
capacity,  in  violation  of  the  rights  of  parties,  is  not  a  fraud, 
it  would  be  difficult  to  conceive  of  a  case  in  which  official 
malfeazance  could  be  construed  into  fraud.  The  principle 
of  law  is  well  settled,  that  not  only  the  parties  directly  in 
interest  may  be  relieved  from  this  kind  of  fraud,  but  a 
court  of  equity  will  afford  relief  to  parties  who  are  indi- 
rectly made  to  suffer  by  such  official  misconduct.  2  Am. 
Chy.  Dig.,  16,  19,  24. 

But  it  was  contended  by  counsel  for  the  appellees,  that 
if  there  was  error  in  the  district  court  in  dismissing  the 
bill,  the  judgment  should  not  be  reversed  unless  the  error 
a})pears  affirmatively  upon  the  record.  This  is  the  law 
when  applied  to  cases  upon  writs  of  error,  as  has  been 
frequently  decided  by  this  com't.  Machemer  v.  Benner,  1 
G.  Greene,  157  ;  Saum  v.  Jones  Co.  Com.,  ib.,  165 ;  Hemp- 
hill V.  Salladay,  ib.,  301. 

But  this  doctriiic  does  not  obtain  when  applied  to 
appeals  in  chancery.     On  appeal,  a  court  of  equity,  freed 


BURLINGTON,  MAY,  1849.  135 

Lyne  v.  Hoyle. 

from  those  rigid  rules  which  limit  and  confine  a  com-t  of 
errors,  having  acquired  jurisdiction,  will  examine  into  the 
merits  of  the  case  for  the  purpose  of  administering  justice, 
guided  only  by  the  universal  principles  of  equity  juris- 
prudence. Not  confined  to  errors  apparent,  the  court  will 
correct  errors  of  conscience,  which  sometimes  are  of  such 
a  natm*e  that  they  cannot  be  spread  upon  the  record.  All 
appeals  in  chancery  must  be  tried  de  novo,  the  same  as 
if  this  court  had  original  jurisdiction,  regardless  of  the 
decision  of  the  court  below,  except  so  far  as  necessary  to 
a  correct  understanding  of  the  record  and  the  matters  at 
issue. 

From  a  careful  examination  of  the  matters  presented  in 
this  case,  we  are  of  the  opinion  that  the  bill  exhibits  a 
strong  case  for  equity  interference,  and  that  the  court 
below  erred  in  sustaining  the  demurrer  to  the  complain- 
ants' bill. 

The  decree  is  reversed,  and  the  case  remanded  to  the 
court  below,  for  further  proceedings  not  inconsistent  with 
this  opinion. 

Decree  reversed. 

J,  C,  Hall,  for  appellantau 

D,  EorcTf  for  appellees. 


LYNE  et  al.  v.  HOYLE  a  at. 

Application  for  a  change  of  venue  may  be  made  to  a  justice  of  the  peace  at 
any  time  after  the  appearance  of  parties  and  before  the  jury  is  sworn,  or 
the  trial  submitted  to  the  justice. 

Statutes  made  to  promote  an  impartial  administration  of  justice  shoold 
receive  a  liberal  construction. 


136  SUrUE^IE  COULiT  CASES, 


Lj'ue  V.  Hoyle. 


Errok  to  Lee  District  Court. 

Opinion  hy  Greene,  J.  Application  was  made  to  the 
justice  of  the  peace  before  whom  this  suit  was  commenced 
for  a  change  of  venue.  The  change  was  refused,  on  the 
ground  that  the  affidavit  for  it  was  made  after  a  contin- 
uance of  the  cause,  and  after  the  return  day  of  the  writ. 
But  it  appears  to  have  been  made  before  the  jury  was 
sworn  or  the  trial  submitted  to  the  justice.  Judgment 
having  been  rendered  against  the  defendant,  he  took  the 
case  to  the  district  court  by  writ  of  certiorari^  to  determine 
the  correctness  of  the  decision  by  which  his  application 
for  a  change  of  venue  was  overruled.  In  the  district 
court  tlie  judgment  of  the  justice  was  affirmed. 

The  section  of  the  statute  about  which  the  question  of 
construction  is  raised  j^rovidcd,  that  "  if,  upon  the  appear- 
ance of  the  parties  on  the  return  of  process  in  any  case, 
either  party  shall,  before  the  jury  is  sworn  or  the  trial 
submitted  to  the  justice,  make  affidavit,"  &c.  Rev.  Stat., 
327,  §  6.  It  is  urged  that  this  language  limits  the  time 
of  filing  the  affidavit  for  a  change  of  venue  to  the  return 
day  of  the  process,  and  that  a  party  cannot  avail  himself 
of  it  at  any  future  day,  or  after  a  continuance  of  the  cause. 
To  this  construction,  however,  we  cannot  give  concurrence. 
The  letter  of  the  statute  clearly  imports  a  term  within 
two  designated  periods  of  time,  dm'ing  which  a  party  may 
avail  himself  of  this  important  legal  right.  This  term 
commences  "  upon  the  appearance  of  the  parties,"  after  or 
"on  the  retmm  of  process,"  and  terminates  as  soon  as 
"  the  jury  is  sworn  or  the  trial  is  submitted  to  the  justice." 
This  construction,  we  think,  must  necessarily  follow  as  the 
manifest  spirit  of  the  law  and  the  apparent  intention  of 
the  legislature.  Statutes  made  to  promote  an  impartial 
administration  of  justice  should  receive  a  liberal  construc- 
tion, a  construction  that  will  not  limit  or  impair  its  reme- 
dial object.  Steamboat  "  Kentucky''''  v.  Brooks  et  al.,  1  G. 
Greene,  398.     As  in  this  case  the  jury  had  not  been  sworn, 


BURLINGTON,  MAY,  1849.  137 

Hampton,  ex  parte. 

nor  the  trial  submitted  to  the  justice,  when  the  defendant 
made  application  for  a  change  of  venue,  it  should  not  have 
been  refused,  and  the  district  court  erred  in  affii-ming  the 
decision. 

Judgment  reversed 

J.  C.  Hallf  for  plaintiff  in  error, 

Geo,  C.  Dixon^  for  defendants. 


HAMPTON,  expaHe, 

No  person  but  the  party  in  whose  favor  a  judgment  is  rendered,  his  agent 
or  attorney  of  record,  can  control  or  order  process  to  enforce  the  judgment. 

Officers  of  court,  or  witnesses  to  whom  fees  are  due,  have  not  the  power  to 
order  execution  on  a  judgment  owned  by  another. 

Opinion  hy  Williams,  C.  J.  In  the  matter  of  the  mo- 
tion of  George  S.  Hampton,  to  rescind  the  order  entered 
at  this  term,  relative  to  certain  executions  issued  by  him 
as  clerk  of  the  4th  supreme  court  district,  to  the  sheriff  of 
Des  Moines  county,  for  costs. 

The  costs,  for  which  the  executions  have  been  issued, 
accrued  upon  causes  which  were  pending  in  the  supreme 
court  of  this  state,  previous  to  the  enactment  of  the  law 
dividing  the  state  into  districts. 

Upon  the  passage  of  the  law  creating  four  supreme  court 
districts,  the  attorneys  of  the  parties  to  the  several  suits 
made  an  agreement  in  writing,  that  certain  cases  therein 
named  should  be  transferred  from  the  docket  at  Iowa 
city  to  that  of  the  first  district  at  Burlington,  to  be  tried; 
and  that  in  all  those  cases  the  costs  should  be  paid  by  the 
losing  party  upon  final  judgment. 

In  order  to  the  removal  of  the  causes,  the  writ  of  error 
in  each  case  was  dismissed  from  the  4th  district  at  Iowa 
Vol.  II.  10 


SUPREME  COURT  CASES, 


Hampton,  ex  parte. 


city,  and  tlie  papers  withdrawn  according  to  tlie  agree- 
ment ;  and  they  were  regularly  entered,  without  prejudice 
to  the  parties,  on  the  docket  of  the  1st  district  at  Bui-ling- 
ton,  there  to  be  tried. 

Such  being  the  facts,  and  the  causes  being  for  trial  and 
final  disposal,  the  clerk  of  the  supreme  court  for  the  4th 
district,  on  his  own  motion,  issued  execution  in  each  of 
these  cases  for  his  fees,  judgment  being  entered  for  the 
costs  on  the  dismissal  of  the  writs  in  that  district. 

The  supreme  court  being  in  session  in  the  1st  district, 
the  attorneys  in  these  cases  appeared  in  court,  and  having 
directed  the  sheriff  to  return  the  executions  to  the  clerk 
of  the  4th  district,  whence  they  came,  procured  an  order 
from  this  court,  directing  the  clerk  of  the  4th  district  to 
make  out  and  send  to  the  clerk  of  the  1st  district,  a  fee 
bill  in  each  case,  in  order  to  the  collection  and  payment  of 
the  fees  in  accordance  with  the  practice  in  this  state. 

The  motion  now  to  be  considered,  is  to  rescind  that  order, 
so  that  executions  may  be  allowed  to  issue  as  before. 

The  question  is,  whether  the  attorneys  for  the  parties  to 
a  suit  have  the  power  to  control  the  cause  until  finally  dis- 
posed of  in  the  court,  without  interference  on  the  part  of 
the  clerk,  or  other  persons  who  may  be  entitled  to  fees. 

In  conducting  a  cause  in  any  of  the  courts  of  this  state, 
before  or  after  judgment,  no  person  can  be  recognized  as 
being  authorized  to  control  the  case  but  the  party,  his 
agent,  or  attorney  of  record. 

It  not  unfrequently  happens  that  the  parties,  plaintiff 
and  defendant,  in  the  exercise  of  right,  and  in  the  spirit 
of  justice  and  compromise,  agree  upon  terms  by  which 
the  stern  and  rigorous  proceeding  of  the  law  is  stayed,  and 
time  and  opportunity  afi'orded  for  the  defeated  party  to 
satisfy  the  demands  of  the  law,  with  the  consent  of  his 
successful  antagonist.  Courts  will  not  prevent  the  parties 
from  acting  with  conciliation  and  forbearance,  promotive 
of  convenience. 

To  allow  the  officers  of  the  court,  or  witnesses,  to  whom 
fees  may  be  due,  to  step  in  and  control  the  cause,  either 


BURLINGTON,  MAY,  1849.  139 


LIuvd  V.  McClure. 


before  or  after  judgment,  by  ordering  process  to  issue, 
would  be  a  manifest  privation  of  the  rights  of  the  parties. 

A  judgment  when  entered  is  subject  to  the  control  of 
the  party  in  whose  favor  it  is.  He,  his  agent  or  attorney, 
may,  in  the  use  of  the  proper  jirocess  of  the  law,  enforce 
it,  and  no  other  person.     It  is  his  judgment. 

If  fees  be  due  to  the  officers  of  the  courts,  or  witnesses, 
and  they  are  unreasonably  delayed  in  their  collection  by 
the  parties  to  the  proceeding,  the  law  gives  them  a  remedy 
for  services  rendered.  They  may  enforce  their  rights  by 
proceeding  against  the  party  liable. 

In  these  cases,  the  attorneys  acted  in  the  exercise  of 
rightful  and  legal  power,  by  staying  the  executions  and 
ordering  their  return.  The  causes  in  which  the  fees  have 
accrued  being  now  in  this  com't,  by  agreement  of  the 
attorneys  for  the  parties,  which  makes  provision  for  the 
payment  of  those  fees  as  far  as  the  parties  are  concerned, 
the  fees  which  are  due  upon  the  docket  at  Iowa  city  will 
be  sent  to  the  office  of  the  clerk  of  this  district,  to  be  made 
part  of  the  record  in  the  cases  to  which  they  may  apper- 
tain, subject  to  such  further  proceeding  as  may  be  proper 
for  the  parties  interested. 

Motion  refused. 

Geo.  S.  Hampton,  pro  se, 

J,  C.  Hall,  contra. 


LLOYD  V.  MoCLURE. 

Where  a  verdict  has  been  returned  on  matters  of  account,  a  new  trial  sTioald 
not  be  granted,  unless  it  is  apparent  that  manifest  injustice  has  been 
done. 

A.  new  trial  should  be  granted,  if  the  verdict  is  contrary  to  law,  and  the 
instructions  of  the  court. 


140  SUPPvEME  COURT  CASES, 

Lloyd  V.  McClure. 

Unless  the  contrary  appears,  it  will  be  presumed  that  the  court  exercised  a 
sound  discretion  in  overruling  a  motion  for  a  new  trial. 

Where  a  party  enters  credits  upon  the  instrument  sued  on,  it  is  not  necessary 
for  the  defendant  to  prove  them. 

Affidavits  of  jurors  not  admissible  to  explain  their  verdict. 


Erkor  to  Des  Moines  District  Court. 

Opinion  by  Kdtney,  J.  McClure  sued  Lloyd  before  a 
justice  of  the  peace,  upon  an  account  amounting  to 
$07.43,  upon  which  he  had  given  Lloyd  a  credit  of 
$18.67. 

McClure  recovered  a  verdict  before  the  jury  for  $45.76. 
Lloyd  appealed  to  the  district  court  of  Lee  county,  from 
which  he  obtained  a  change  of  venue  to  Des  Moines, 
where  the  cause  was  tried,  and  a  verdict  rendered  in 
favor  of  McClure  for  $25.25.  Lloyd  filed  his  motion 
for  a  new  trial,  which  was  overruled  by  the  court.  This 
ruling  is  assigned  for  error.  A  bill  of  exceptions  em- 
bodying all  the  testimony  was  taken  by  the  plaintiff 
in  error,  from  which  it  is  contended  that  the  verdict 
of  the  jmy  was  not  authorized  by  the  testimony  sub- 
mitted, and  hence  the  court  should  have  granted  a  new 
trial. 

When  matters  of  account  are  submitted  to  a  jury, 
and  a  verdict  rendered,  judges  should  not  distm'b  the 
verdict,  unless  it  is  apparent  that  manifest  injustice  has 
been  done.  By  the  wise  policy  of  our  laws,  the  jury 
are  made  the  exclusive  judges  of  all  the  facts,  and  if 
by  their  verdict  they  misapply  the  fticts,  or  err  in  their 
conclusions,  it  should  be  such  an  error  as  to  produce 
irresistible  conviction  upon  the  mind  of  the  court  that 
the  verdict  is  not  the  result  of  a  free,  sound,  and  un- 
biased exercise  of  judgment  upon  the  testimony  sub- 
mitted, and  that  manifest  injustice  will  result  from  a 
judgment  upon  the  verdict,  before  the  judge  should  inter- 
fere by  putting  the  parties  again  to  the  expense  and 
trouble  of  another  trial.  While  this  is  true  in  relation 
to  those  cases  involving  merely  matters  of  fact,  inde- 


BURLINGTON,  MAY,   1849.  141 

Lloyd  V.  McClure. 

pendent  of  legal  questions,  it  is  equally  true  that  courts 
should  not  hesitate  to  grant  new  trials  when  the  verdict 
is  contrary  to  law  and  the  instructions  of  the  court  upon 
the  law  of  the  case.  But  even  in  such  cases  the  court 
will  not  grant  a  new  trial,  unless  the  verdict  will  operate 
injuriously  upon  the  j)arty  ajjplying. 

But  in  the  case  before  us,  the  motion  was  predicated 
upon  the  ground  that  there  was  not  sufficient  testimony 
to  support  the  verdict.  Unless  the  contrary  appears,  we 
must  presume  that  the  court  exercised  a  sound  discretion 
in  refusing  the  motion  for  a  new  trial.  This  court  cannot 
take  the  place  of  a  jury,  and  weigh  the  testimony,  and  de- 
cide that  the  preponderance  is  in  favor  of  the  plaintiff  in 
error.  If  the  court  below  erred  upon  a  motion  addressed 
to  its  sound  discretion,  in  which  was  not  involved  any  ques- 
tion of  law,  it  may  well  be  questioned  whether  this  court, 
as  a  court  for  the  correction  of  errors  at  law,  can  reverse 
on  that  account.  At  common  law,  the  decision  of  a  court 
upon  an  application  addressed  to  its  sound  discretion, 
cannot  be  assigned  for  error.  In  the  case  of  Cook  v.  TJie 
United  States,  1  G.  Greene,  56,  this  court  say  :  "  To  give 
the  court  jurisdiction  of  a  cause  on  writ  of  error,  the 
basis  of  the  error  being  the  decision  of  the  court,  upon  a 
motion  for  a  new  trial,  it  must  appear  affirmatively  upon 
the  record  that  the  motion  was  based  and  decided  upon 
some  legal  point  contained  in  the  motion  for  a  new  trial." 
This  appears  to  be  in  accordance  with  the  decisions  in 
Illinois,  before  the  common  law  was  changed  by  statute. 
Smith  Y.'Shultz,  1  Scam.,  491. 

But  it  was  urged  in  the  argument,  that  the  jury  did 
not  allow  Lloyd  the  credits  that  were  given  by  McClure 
upon  his  bill  of  particulars.  When  a  party  enters  credits 
upon  the  instrument  sued  on,  whether  it  be  a  note  or  oq 
account,  the  opposite  party  is  not  obliged  to  prove  them. 
They  stand  admitted  or  confessed,  and  it  would  be  a  hard- 
ship upon  the  defendant,  resting  securely  in  the  belief  that 
testimony  would  not  be  necessary  to  j^rove  the  credits,  if 
upon  trial  they  were  excluded.     A  party  has  a  right  to 


142  SUPREME  COURT  CASES, 


Wright  V.  Husrhes. 


presume  it  is  not  necessary  to  prove  that  whicli  is  ad- 
mitted by  written  credits  upon  a  paper,  which  constitutes 
the  evidence  of  the  plaintiff's  right  of  action. 

In  this  case  the  affidavits  of  the  jurors  were  introduced 
in  explanation  of  their  verdict,  and  in  relation  to  what 
items  they  had  allowed,  and  what  rejected.  Jurors  are 
not  permitted  in  this  manner  to  explain  or  justify  a  ver- 
dict. When  their  verdict  has  been  attacked,  they  have 
in  some  instances  been  permitted  to  introduce  affidavits 
in  support  of  their  verdict ;  but  according  to  the  settled 
doctrine,  for  no  other  purpose.  These  affidavits  having 
been  properly  rejected  by  the  court,  there  was  not  any 
evidence  showing  that  the  credits  of  Lloyd  on  McClure's 
bill  were  not  allowed  by  the  jury,  and  the  presumption 
must  be,  that  they  were  allowed  and  taken  into  considera- 
tion by  them  in  making  up  their  verdict.  After  having 
been  entered  by  McClure,  they  were  admitted  and  con- 
fessed, as  much  so  as  if  he  had  orally  acknowledged  before 
the  jury  that  they  were  correct  items  of  set-off.  It  would 
certainly  be  a  most  violent  presumption  to  suppose  that 
they  weye  not  allowed  to  Lloyd  by  the  jury,  and  that  they 
did  not  constitute  a  part  of  their  verdict. 

Judgment  affirmed, 

J,  C,  Hall,  for  plaintiff  in  error. 
M,  D,  Browning^  for  defendant. 


WRIGHT  V.  HUGHES  et  aU 

The  time  of  suing  out  a  writ  of  error  is  determined  by  the  date  of  ita 
service  upon  the  clerk  to  whom  it  is  directed. 

Ekeok  to  Lee  District  Court. 

Opinion  by  Greene,  J.     A  motion  is  made  in  this  case 
to  dismiss  the  writ  of  error,  on  the  greund  that  it  was  not 


BURLINGTON,  MAY,  1849.  143 

Wright  V.  Hughes. 

sued  out  within  three  years  after  the  rendition  of  the  judg- 
ment, as  limited  by  statute. 

The  record  shows  tliat  the  judgment  was  rendered  Oc- 
tober 24,  1845.  The  writ  of  error  appears  to  have  been 
first  dated  on  the  1st  day  of  "  Nov."  1848,  but  the  word 
"  Nov."  is  jjartly  erased  and  October  inserted.  On  the 
22d  of  November  the  writ  was  filed  with  the  clerk  of  the 
district  court. 

In  su})port  of  the  motion,  it  is  urged  that  the  only 
authentic  evidence  of  the  time  of  suing  out  a  writ  of 
error  is  the  date  of  its  service  upon  the  clerk  of  the  dis- 
trict court  to  whom  it  is  directed. 

As  the  clerk  of  the  supreme  court  is  authorized  by 
law  to  issue  blank  writs  of  error  to  any  attorney  of  the 
com't,  to  fill  up  as  occasion  may  require,  and  as  they 
are  subject  to  be  antedated  to  suit  particular  cases,  the 
law  limiting  the  time  for  suing  out  writs  of  error  to  three 
years  from  the  date  of  the  judgment,  might  be  grossly 
evaded  by  taking  the  date  of  the  writ  as  a  reliable  test 
of  the  time  it  was  sued  out.  If  writs  of  error  were  dated 
and  filled  up  by  the  officer  issuing  them,  as  is  usual  with 
other  writs,  their  date  would  be  regarded  as  evidence  of 
the  time  they  were  really  sued  out.  But  under  our  prac- 
tice, in  order  to  prevent  an  abuse  of  the  law  in  that  par- 
ticular, we  deem  it  the  safest  rule  to  be  guided  by  the 
date  the  writ  was  served  upon,  or  filed  by  the  clerk  of 
the  district  court,  to  whom  it  is  directed. 

The  writ  of  error  in  the  present  case,  not  having  been 
sued  out  in  time,  the  motion  to  dismiss  is  granted. 

Motion  granted. 
J.  C.  Hallf  for  plaintiff  in  error, 
H,  T,  Reid,  for  defendants. 


144  SUPREME  COURT  CASES, 


Millard  v.  Singer. 


MILLAED  V.  SINGER. 

A  new  trial  sliould  not  be  granted  on  the  ground  of  newly  discovered  evi- 
dence, unless  it  is  of  a  character  calculated  to  produce  a  substantial 
change  in  the  verdict ;  nor  when  such  evidence,  by  ordinary  diligence, 
might  have  V)een  produced  on  the  trial. 

A  motion  for  a  new  trial  is  addressed  to  the  sound  discretion  of  the  court, 
and  should  be  refused  unless  a  strong  meritorious  case  is  shown. 

Error  to  Lee  District  Court. 

Opinion  hy  Williams,  C.  J.  This  is  an  action  of  as- 
sumpsit, commenced  before  a  justice  of  the  peace  in  Lee 
county.  Justin  Millard,  the  plaintiff,  sued  Henry  Singer, 
the  defendant,  for  services  rendered,  as  a  physician,  to 
Elizabeth  Conkle.  The  suit  was  brought  against  the  de- 
fendant, charging  him,  as  husband  of  the  said  Elizabeth, 
with  the  indebtedness  created  when  she  was  a  feme  sole. 
The  cause  was  taken  to  the  district  court  of  Lee  county 
by  appeal. 

LTpon  the  trial  below,  evidence  was  given  for  the  pur- 
pose of  showing  that  Elizabeth  was  2.  feme  sole  at  the  time 
the  services  were  rendered.  That  she  was  then  acting 
without  the  control  of  her  father,  and  was  of  such  an  age 
as  rendered  her  liable  in  law  for  debts  contracted  by  her. 
The  evidence  being  closed,  the  cause  was  submitted  to  the 
jury,  and  a  verdict  was  rendered  for  the  defendant.  A 
motion  was  made  for  a  new  trial,  and  overruled  by  the 
court. 

The  bill  of  exceptions  taken  in  the  case  presents  the 
question  for  adjudication  upon  the  following  assignments 
of  error : 

1.  The  court  erred  in  refusing  to  grant  a  new  trial. 

2.  The  com't  erred  in  the  instructions  given  to  the  jury. 
The  bill  of  exceptions  shows  that  evidence  was  given  to 

the  jury  tending  to  prove  plaintiff's  account  for  services, 
as  physician,  rendered  to  Elizabeth  Conkle,  (now  charged 
as  the  wife  of  Singer,)  the  defendant,  while  she  yfSiS.feme 


BURLINGTON,  MAY,  1849.  145 

Millard  v.  Singer. 

sole,  and  resided  with  her  father,  Henry  Conkle,  and  that 
such  services  were  necessary  ;  also  that  she  was  not  a  minoi- 
at  the  time  the  services  were  rendered,  that  she  acted  for 
herself,  received  her  own  wages,  paid  her  own  expenses, 
&c.     The  items  charged  were  admitted  to  be  correct. 

Henry  Conkle,  the  father  of  Elizabeth,  was  called  as  a 
witness,  and  proved,  among  other  things,  that  the  services 
charged  in  the  plaintiff's  account  were  rendered  to  his 
daughter  while  she  was  a  member  of  his  family,  and  under 
age,  in  July,  1846. 

Evidence  was  also  given  to  the  jury  that  wages  had 
been  paid  to  Elizabeth  before  her  alleged  marriage  with 
Singer,  for  work  done  by  her,  &c. 

The  jury  having  rendered  their  verdict  for  the  defendant, 
a  motion  was  made  for  a  new  trial.  This  motion,  together 
with  the  instructions  of  the  court,  is  made  a  part  of  the 
bill  of  excejDtions. 

The  instructions  which  were  given  by  the  court  to  the 
jury  are  assigned  for  error.  The  assignment  does  not 
specify  any  jjarticular  error,  so  as  to  inform  this  court  in 
what  it  consists.  But  we  are  left  to  examine  and  discuss 
the  instructions  in  extenso,  as  they  appear  of  record  in  the 
case,  to  ascertain  for  the  plaintiff  in  error  whether  some- 
thing may  not  be  found  upon  which  to  maintain  the 
assignment.  As  several  questions  are  decided  by  the 
court  touching  the  case,  as  appears  by  the  instructions,  it 
may  be  justly  presumed  that  the  plaintiff  in  error  must 
have  known  the  error,  if  there  is  any,  upon  which  he  relied 
for  a  reversal  of  the  case.  If  he  knew  it,  he  should  have 
shown  it  to  this  court  specifically,  that  it  might  be  par- 
ticularly considered  and  decision  had  upon  it. 

It  is,  however,  enough  for  us  to  say,  that  we  have 
examined  carefully  the  instructions  of  the  court  below, 
and  find  no  error  in  them. 

The  other  error  assigned  is  the  refusal  of  the  court 
below  to  grant  a  new  trial.  In  support  of  this  motion, 
several  positions  are  taken  and  presented,  which  could  not 
be  properly  urged  to  the  court,  as  tliey  relate  to  matter  of 


146  SUPREME  COURT  CASES, 


Millard  v.  Sinsrer. 


evidence,  which  was  for  the  jury  alone.  The  only  point 
which  we  will  consider  is  that  of  newly  discovered  evidence. 
It  appears  by  the  affidavit  of  Millard,  the  plaintiff,  which 
alleges  that  after  the  trial  of  the  cause  in  the  district  court, 
he  discovered  witnesses  by  whose  testimony  he  could  prove 
that  Elizabeth  Conkle,  (now  Elizabeth  Singer,)  was-,  at  the 
time  the  indebtedness  accrued,  of  age,  so  as  to  enable  her 
to  make  a  contract,  and  that  she  acted  as  2.  feme  sole,  with- 
out the  control  of  her  parents. 

The  affidavits  of  the  persons  by  whom  he  proposed,  on 
the  trial  anew,  if  granted,  to  prove  these  facts,  were  also 
read  to  the  court  and  appear  of  record  in  the  case.  One  of 
them  proved,  that  in  1846,  he  went  to  the  house  of  Henry 
Conkle,  the  father  of  Elizabeth,  and  asked  her  parents 
whether  they  could  let  him  have  her  to  work  for  him  ;  that 
they  told  him  that  she  was  her  own  mistress,  and  could  do 
as  she  pleased ;  tliat  he  hired  her  and  paid  her,  and  not 
her  parents  ;  that  her  parents  did  not  claim  her  earnings  ; 
that  her  father  stated  that  he  was  poor,  and  could  not 
clothe  her  as  a  young  lady  required. 

The  other  swore  that  after  the  trial  of  this  cause  in  the 
court  below,  he  went  to  the  residence  of  Henry  Conkle 
and  examined  the  family  record,  and  found  the  birth  of 
Elizabeth  recorded  as  follows,  viz.  :  "  July  26th,  1827,  my 
Elizabeth  was  born." 

The  testimony  of  the  first  witness  can  only  be  viewed  as 
cumulative  to  that  which  was  given  to  the  jury  upon  the 
trial.  It  presents  nothing  which  would  be  decisive  of  the 
issue  between  the  parties.  In  order  to  operate  successfully 
upon  the  mind  of  the  judge  who  tried  the  cause  below, 
so  as  to  call  forth  the  exercise  of  a  sound  legal  discretion 
in  granting  a  new  trial,  the  newly  discovered  evidence 
should  be  of  a  character  calculated  to  produce  a  verdict 
different  in  substance  from  that  which  has  already  been 
rendered. 

As  to  the  evidence  of  the  second  affidavit,  the  affidavit 
itself  shows  that  soon  after  \\\e  trial  and  verdict,  he  went  to 
the  house  of  Conkle,  flie  father  of  Elizabeth,  and  examined 


BURLINGTON,  MAY,  1849.  147 


Millard  v.  Sinsrer. 


the  family  record,  &c.  This  evidence,  if  in  the  exercise 
of  due  diligence  the  party  had  used  the  proper  means  to 
procure  it,  might  have  tended  strongly  to  contradict  the 
testimony  of  Henry  Conkle,  the  father.  But  why  was  it 
not  produced  on  the  trial  ?  It  might  have  been  as  easily 
procured  before  the  trial  as  after  it,  had  the  plaintiff  exer- 
cised ordinary  diligence  in  preparing  for  the  trial.  It  was 
within  his  power  to  procm*e  it,  and  he  should  have  done  so. 
If  courts  would  allow  a  party  thus  to  neglect  the  necessary 
means  of  making  out  his  case,  at  the  proper  time,  and 
then,  upon  a  showing,  after  verdict  against  him,  he  could 
produce  evidence  which  would  give  him  a  new  trial,  there 
would  be  no  end  to  litigation.  The  party  claiming  a  new 
trial  must  not  only  show  the  court  that  he  has  discovered 
new  and  material  testimony  which,  upon  the  issue  tried, 
would  have  produced  a  different  verdict,  and  one  more 
favorable  to  him  ;  but  he  must  by  evidence  satisfy  that 
court  that  such  testimony  was  not  wanting,  on  the  trial, 
in  consequence  of  his  own  negligence.  He  must  show  due 
diligence  to  procure  it  on  his  part.  If  by  due  diligence 
he  might  have  discovered  the  evidence  before  the  trial,  a 
new  trial  will  not  be  granted.  Coe  v.  Givan,  1  Blackf., 
367 ;  Schlenher  v.  Risley^  3  Scam.,  486. 

We  have  heretofore  decided  that  a  motion  for  a  new 
trial,  being  addressed  to  the  sound  discretion  of  the  court 
which  tried  the  cause  upon  its  merits,  the  party  making 
it  must  make  out  a  strong  meritorious  case,  or  it  will 
be  refused.  Vide  Lloyd  y.  McClure*  ivie,^  at  this  term, 
and  cases  there  cited.  Wheeler  v.  Shields,  2  Scam.,  351  ; 
Wicker  sham  Y.  The  People,  1  Scam.,  130. 

We  are  of  the  opinion  that  in  overruling  the  motion  for 
a  new  trial,  the  court  was  not  in  error. 

Judgment  affirmed. 


*o' 


L.  R.  Reeves,  for  plaintiff  in  error. 
J.  C.  Hall,  for  defendant. 

*  Ante,  139. 


148  SUPREME  COURT  CASES, 


Cuddelback  v.  Parka. 


CUDDELBACK  et  al  v.  PAEKS. 

In  an  action  of  forcible  entry  and  detainer,  an  appeal  bond  is  necessary  as  a 

condition  precedent  to  an  appeal. 
An  instrument  with  all  the  other  requisites  of  a  bond,  is  not  one,  unless 

signed  and  sealed  by  the  parties  making  it. 
A  recognizance  cannot,   after  an  appeal,   be  converted  into  a  bond   by 

amendment. 

Error  to  Lee  District  Court. 

Opinion  by  Kinney,  J.  This  was  an  action  of  forcible 
entry  and  detainer,  brought  before  a  justice  of  the  peace, 
in  which  the  defendant  in  error  recovered  judgment.  The 
plaintiffs  in  error  having  appealed  the  case  to  the  district 
court,  the  appeal  was  dismissed  for  the  reason  that  the  ap- 
pellants had  not  filed  a  bond  as  was  required  by  the  statute. 

The  ruling  of  the  court  that  the  plaintiffs  in  error  could 
not  amend,  and  the  dismissal  of  the  appeal,  is  the  alleged 
error. 

The  instrument  purporting  to  be  a  bond  is  in  due  form , 
excej)t  that  it  is  not  under  seal,  and  for  this  reason  the 
court  rejected  it.     Was  this  error  ? 

From  the  peculiar  character  and  phraseology  of  our 
statute  in  relation  to  proceedings  before  justices  of  the 
peace,  we  sometimes  find  difficulty  in  giving  a  construction 
to  its  various  provisions  which  will  harmonize  with  each 
other,  and  at  the  same  time  preserve  the  intention  of  the 
legislature.  While  the  legislature  in  many  cases  have 
attempted  to  protect  the  judicial  proceedings  of  justices  of 
the  peace  from  attacks  for  the  want  of  form  and  technical 
compliance,  it  often  becomes  a  serious  question  to  ascertain 
how  far  the  liberality  of  legislation  upon  this  subject  will 
sustain  these  officers  in  their  official  blunders. 

But  in  view  of  all  the  indulgent  statutes  that  have  been 
passed,  for  the  purpose  of  sheltering  justices  of  the  peace 
from  the  errors  wliich  the  legislature  very  properly  pre- 
sumed they  woukl  commit,  still  cases  will  arise  in  which 


BURLINaTON,  MAY,  1849.  149 

Cuddelback  v.  Parks. 

the  statute  cannot  be  successfully  brought  to  the  rescue. 
While  all  these  errors  for  which  the  statue  has  provided 
should  receive  the  favorable  consideration  of  the  court, 
the  courts  cannot  disregard  those  material  ones  for  which 
the  statute  has  not  aiforded  a  remedy. 

The  statute  in  relation  to  forcible  entry  and  detainer, 
contains  provisions  peculiar  to  itself,  and  the  proceedings 
under  it  are  governed  by  its  own  requirements,  dissimilar 
in  many  respects  to  other  proceedings  before  justices  of 
the  peace.  It  provides,  "  that  when  an  appeal  is  prayed 
lor,  as  a  candition  precedent  to  granting  the  same,  the 
justice  shall  require  such  party  to  enter  into  hond^  with 
sufficient  security,  to  be  approved  by  said  justice."  Rev. 
Stat.,  350,  §  32.  The  appeal  must  be  prayed  for  on  the 
day  of  trial,  and  bond  must  be  given  within  ten  days  after 
trial,  &c. 

Giving  a  bond  by  the  party  appealing  is  made,  by  the 
express  language  of  the  statute,  a  condition  precedent  to 
the  allowance  of  the  appeal  by  the  justice  of  the  peace ; 
and  unless  the  bond  is  given,  the  party  is  no  more  entitled 
to  the  appeal,  than  if  a  bond  is  tendered  after  the  expira- 
tion of  the  ten  days  allowed  by  statute. 

The  legislature  have  provided  that  the  party  appealing 
in  other  cases  before  justices  of  the  peace  shall  enter  into 
recognizance,  but  they  have  seen  proper  to  require,  in 
actions  of  forcible  entry  and  detainer,  a  bond,  and  in  posi- 
tive terms  have  prevented  the  allowance  of  the  appeal  un- 
less the  bond  shall  have  been  first  given.  The  statute,  from 
the  peculiar  natureof  the  action,  is  not  only  much  more  strin- 
gent, out  ?ntirely  distinct  from  the  one  in  relation  to  ordi- 
nary cases  before  justices  of  the  peace.  Was  the  instru- 
ment filed  in  this  case  a  bond  in  contemplation  of  law  ? 
Although  it  may  have  possessed  all  other  requisites  of  a 
bond,  it  was  not  one,  unless  signed  and  sealed  by  the  par- 
ties making  it.  In  the  case  of  the  Steamboat  "  Lake  of  the 
Woods "  v.  Shaw*  this  court  say,  that  when  the  legis- 

*  Ante,  page  91. 


150  SUPREME  COURT  CASES, 

Cuddelback  v.  Parks. 

lature  use  the  word  bond,  we  will  presume  they  mean  an 
instrument  under  seal.  Tliis  question  underwent  an  ex- 
amination in  that  case,  and  the  court  adjudged  a  recogni- 
zance sufficient,  only  upon  the  ground  that  a  law  subse- 
quent to  the  one  in  relation  to  boats  and  vessels  provided 
that  any  person  might  appeal  by  entering  into  a  recogni- 
zance, &c.,  differing  in  that  particular  from  the  case  before 
us.  We  agree  with  the  argument  of  the  counsel,  that 
neither  the  wax  nor  the  scrawl  impart  any  particular  virtue 
to  an  instrument  in  point  of  fact,  or  that  their  absence 
would  lessen  the  security ;  yet  if  the  statute  requires  the 
scrawl  to  be  affixed,  courts  are  not  at  liberty  to  dispense 
with  it,  although  they  might  otherwise  regard  it  as  really 
unnecessary,  and  unworthy  the  age  in  which  we  live. 

However  much  we  may  deprecate  the  necessity  for  the 
distinction  in  this  case,  it  is  no  less  the  duty  of  this  court 
to  declare  what  the  law  is,  and  not  what  it  should  be. 

As  there  was  not  any  bond  given  for  the  appeal  in  this 
case  as  was  required  by  the  statute,  the  court  did  not  err 
in  dismissing  the  appeal. 

But  it  is  contended,  that  if  the  bond  was  defective,  the 
appellants  had  the  right  to  amend  under  the  statute.  The 
section  relied  upon  will  be  found,  upon  examination,  to 
apply  exclusively  to  recognizances,  and  not  to  bonds,  and 
has  no  connection  with  the  statute  regulating  the  action 
of  forcible  entry  and  detainer,  it  being  perfect  and  com- 
plete within  itself.  We  must  first  declare,  that  bonds  and 
recognizances  are  synonymous  in  their  legal  signification 
and  efiect,  before  we  can  extend  to  the  plaintiffs  in  error 
the  benefit  of  the  statute  in  relation  to  other  ajDpeals  when 
recognizances  have  been  given. 

The  district  court  did  not  acquu-e  jiu-isdiction  of  the 
appeal,  so  as  to  enable  the  part}'  to  amend.  There  had 
not  been  a  compliance  with  the  statute,  by  which  alone  the 
court  could  be  possessed  of  the  cause,  and  the  appeal  could 
not  receive  any  more  consideration,  than  if  the  pretended 
bond  had  not  been  given.  Instead  of  being  a  defective 
bond,  it  was  not  a  bond  at  all.     As  giving  the  bond  was 


BURLINGTON,  MAY,  1849.  151 

Daniels  v.  Bates. 

a  condition  f)recedent  to  allowing  the  appeal  by  the  justice, 
unless  given,  the  appeal  was  improperly  allowed,  and  the 
court  could  not  take  jurisdiction  so  as  to  permit  an  amend- 
ment or  substitution. 

In  the  case  of  Ex  parte  Chryslin,  4  Cow.,  80,  it  was 
held,  that  unless  there  was  a  strict  compliance  with  the 
statute  requiring  an  appeal  bond,  the  court  did  not  ac- 
quire jurisdiction  of  the  aj^peal,  and  although  the  bond 
was  merely  defective,  the  court  refused  to  entertain  juris- 
diction for  the  purpose  of  allowing  an  amendment. 

In  this  case,  the  court  are  not  required  to  go  so  far,  as 
there  was  not  any  bond  filed  before  the  justice,  and  there- 
fore we  are  of  the  opinion  that  the  court  did  not  err  in 
dismissing  the  apeah 

Judgment  affirmed. 

J»  C»  Hall,  for  plaintiffs  in  error. 

J,  M,  Becky  for  defendant. 


DANIELS  V.  BATEa 

When  the  plaintiff  in  an  action  of  right  waives  all  but  nominal  damages,  the 
defendant  cannot  introduce  evidence  of  a  set-off  for  improvements. 

Error  to  Des  Moines  District  Court. 

Opinion  by  Greene,  J.  Joseph  S.  Bates  sued  Theodore 
Daniels  in  an  action  of  right.  The  complaint  was  filed 
and  proceedings  had  in  the  district  court  under  the  statute 
regulating  the  action  of  right.  Rev.  Stat.,  626.  The 
defendant's  plea  to  the  merits  craversed  the  plaintiff's 
right  to  the  land,  and  to  damages  for  the  detention.  Upon 
the  issue,  the  jury  found  the  right  of  possession  to  be  in 
the  plaintiff,  and  assessed  his  damages  at  one  cent. 


152  SUPREME  COURT  CASES, 

Daniels  v.  Bates. 

It  appears  by  the  bill  of  exceptions,  that  after  the  plain- 
tiff had  established  his  legal  title  to  the  premises,  and  sub- 
mitted his  cause  to  the  jury  without  evidence  of  damages, 
the  defendant  introduced  witnesses  to  prove  the  nature 
and  value  of  permanent  improvements  made  by  him  on 
the  land  in  question,  in  order  to  recover  compensation. 
To  this  testimony  the  plaintiff  objected,  and  waived  all 
right  to  more  than  nominal  damages  of  one  cent.  This 
objection  was  sustained,  and  the  defendant  precluded  from 
giving  the  testimony  in  reference  to  the  improvements. 
The  action  of  the  court  below  in  excluding  this  testimony 
is  the  only  error  assigned. 

The  53d  section  of  the  act  above  referred  to,  is  cited 
to  show  that  the  court  improperl}^  excluded  the  testi- 
mony. That  section  provides,  that  ''where  the  plaintitf 
in  an  action  of  right  shall  be  entitled  to  damages  for  with- 
holding, or  using,  or  injuring  his  property,  the  defendant 
shall  be  allowed  to  set-off  any  permanent  improvements 
he  may  have  made  thereon,  at  their  fair  value  to  said 
plaintiff.*'  This  involves  the  inquirj^,  whether  the  defend- 
ant can  claim  compensation  for  permanent  improvements 
in  the  way  of  a  set-off,  where  the  plaintiff  has  waived  all 
right  to  damages.  The  determination  of  this  question 
must  depend  upon  the  legal  construction  of  the  section  of 
the  statute  above  quoted. 

That  a  party  has  a  right  to  waive  damages  is  a  self- 
evident  proposition,  too  obvious  to  be  questioned.  After 
damages  have  been  waived  by  the  plaintiff,  the  question 
arises,  how  can  the  defendant  acquire  a  set-off?  Against 
what  can  it  operate  ?  What  claim  or  demand  can  it  coun- 
terbalance in  whole  or  in  part  ?  It  would  be  doing  violence 
to  the  common  and  legal  acceptation  of  the  term,  to 
assume  that  a  set-off  can  be  made  against  nothing,  or  that 
a  defendant  can  recover  judgment  by  virtue  of  a  set-off 
for  any  amount  exceeding  the  plaintiiFs  demand,  unless 
such  proceeding  is  expressl)''  authorized  by  statute  ;  and 
even  then  the  defendant's  claim  should  be  distinguished 
by  some  other  name  than  that  of  set-off.     Webster  defines 


BURLINGTON,  MAY,  1849.  163 


Daniels  v.  Bate?. 


a  set-ofF  to  be  the  act  of  admitting  one  claim  to  counter- 
balance another.  In  3  Black.,  304,  it  is  defined  to  be  a 
claim  which  a  defendant  has  upon  a  plaintiff,  and  which 
he  sets  ap,  or  places  against  the  plaintiff's  demands.  Holt- 
house,  in  his  Law  Dictionary,  393,  describes  it  as  a  demand 
which  the  defendant  in  an  action  sets  up  against  the  plain- 
tiff's demand,  so  as  to  counterbalance  that  of  the  plaintiff, 
either  altogether  or  in  part.  Guided  by  this  definition 
of  the  term,  it  will  be  difficult  to  apply  a  sound  rule  of 
construction  to  the  section  referred  to,  which  will  justify 
compensation  to  the  defendant  for  improvement,  by  way  of 
a  set-off,  where  the  plaintiff  waives  all  but  merely  nomi- 
nal damages.  In  our  view,  such  a  construction  would  do 
palpable  violence  to  the  obvious  language  and  intention 
of  tlie  law.  Had  the  legislature  intended  compensation 
to  the  defendant  in  such  ah  action,  other  than  that  which 
would  result  from  a  legitimate  set-off,  but  few  words  would 
have  been  required  to  disclose  such  intention.  But  we 
must  be  guided  by  the  explicit  letter  of  the  law  as  it  is. 
A  clause  in  the  statute,  authorizing  the  defendant  in  an 
action  of  right  to  recover  compensation  for  permanent 
improvements,  might  well  be  deemed  expedient,  as  it  would 
tend  to  the  advancement  of  justice,  and  prevent  a  multipli- 
cation of  suits ;  but  such  expediency  should  be  addressed 
to  the  general  assembly,  as  a  reason  for  amending  the  act, 
and  not  to  the  com'ts,  for  a  forced  and  unauthorized  con- 
struction. , 

In  an  action  before  a  justice  of  the  peace,  the  defendant 
may  set-off  any  demand  which  he  may  have  against  the 
plaintiff,  and  if  his  set-off  amounts  to  more  than  the 
plaintiff's  debt,  a  judgment  for  the  excess  is  authorized  by 
statute.  Rev.  Stat.,  319,  §  10.  But  this  provision  is  limited 
to  actions  founded  on  contracts,  and  commenced  before 
justices  of  the  peace,  and  has  no  application  to  an  action 
of  right.  We  cannot,  then,  by  mere  intendment,  extend 
this  provision  beyond  the  letter  and  spirit  of  the  statute, 
especially  as  the  construction  sought  is  a  departure  from 
principles  of  common  law. 

Vol.  IL  11 


154  SUPREME  COURT  CASES, 

Cameron  v.  Boyle. 

The  riglit  of  tlie  teuant  or  occupant  to  recover,  in  a 
proper  action,  for  permanent  improvements,  is  not  pro- 
perly the  subject  of  inquiry  in  this  case. 

Judgment  affirmed. 

M.  D.  Browning,  for  plaintiff  in  error, 

J,  C,  Hall,  for  defendant. 


CAMERON  et  al.  v.  BOYLE  et  at. 

In  an  action  of  debt  on  a  replevin  bond,  it  is  a  sufficient  averment  of  non 

payment  where  the  declaration  states,  "  that  no  part  of  the  said  judgment 

and  costs  have  been  paid,  and  that  the  whole  amount  remains  due  and 

owing." 
Where  the  execution  returns  state  "  no  property  found,"  it  is  sufficient  to 

justify  an  action  on  a  replevin  bond  under  the  statute,  requiring  a  return, 

"  that  sufficient  property  of  the  plaintifTs  cannot  be  found,"  &c. 
Judgment  cannot  be  impeached  collaterally  for  mere  irregularity. 
If  the  important  averments  of  a  declaration  are  made,  with  a  Bufficient 

regard  to  the  rules  of  pleading  to  put  the  defendant  on  his  defence,  they 

are  sufficiently  good. 
When  a  demurrer  is  overruled,  and  the  defendant  fails  to  plead  over  within 

the  time  required  by  rule  of  court,  judgment  may  be  rendered  against 

hinu 
Judgment  may  be  rendered  for  the  penalty  named  in  a  bond,  as  a  secoritj 

for  the  damages  recovered  upon  the  breaches  assessed. 
Judgment  should  not  be  rendered  for  a  greater  amount  of  damages  than  Is 

claimed  in  the  declaration. 

Error  to  Des  Moines  District  Court, 

Opinion  hy  Williams,  C.  J.  This  is  an  action  "brought 
by  the  plaintiffs  below  against  the  defendants  on  a  replevin 
bond.  The  plaintiffs'  declaration  contains  two  counts. 
The  first  is  on  the  obligation  as  a  penal  bond  in  the  usual 
form,  setting  forth  the  execution  on  the  day  of  its  date  : 


BURLINGTON,  MAY,  184^.  165 


Cameron  v.  Boyle. 


the  acknowledgment  of  the  indebtedness  of  v-*^00;  the 
liability  of  the  defendants  to  pay  the  money  on  request, 
and  the  failure  to  pay  it,  although  often  requested. 

The  second  count  sets  forth  the  making  of  the  bond, 
&c.,  in  the  usual  form,  averring  that  it  was  subjected  to  a 
condition  which  is  in  terms  set  forth  as  follows :  "  Now 
the  condition  of  this  bond  is  such,  that  whereas  said 
William  S.  Hathaway  and  William  E.  Clifford  are  about  to 
replevy  of  one  Alexander  F.  W.  Webb  and  Anthony  W. 
Carpenter,- sheriff,  &c.,  certain  dry  goods  and  groceries, 
described  in  a  certain  writ  of  replevin,  now  in  my  posses- 
sion :  Now  if  said  William  S.  Hathaway  and  William  E. 
Clifford  shall  appear  at  the  return  term  of  said  writ  and 
prosecute  their  suit  to  effect,  and  shall  pay  all  costs  and 
damages  that  shall  be  awarded  against  them,  then  this 
bond  shall  be  void,  otherwise  remain  in  full  force." 
Then  are  added  the  necessary  averments  that  the  bond 
was  duly  executed  by  Hathaway  &  Clifford,  and  Cameron 
&  Dolbee  as  their  securities ;  that  a  writ  of  replevin  issued, 
and  that  the  goods  were  apprehended  and  delivered  to 
them,  the  plaintiffs,  in  the  action  of  replevin. 

Then  follows  the  averment,  as  a  breach  of  the  condition 
of  the  bond,  "  that  Hathaway  &  Clifford  had  failed  to  ap- 
pear at  the  return  of  said  writ,  and  prosecute  the  same  to 
effect,  and  pay  all  damages  and  costs  that  were  awarded 
by  the  court  against  them ;  but,  on  the  contrary,  that  at 
the  proper  court,  a  judgment  was  entered  against  them, 
the  said  Hathaway  &  Clifford,  for  the  sum  of  |302.4  as 
damages  in  favor  of  the  defendants  Carpenter  &  Webb, 
and  costs  of  suit.  That  an  execution  had  issued  against 
the  defendants  in  the  said  judgment,  and  a  return  made 
thereon  of  "  No  property  found  in  my  bailiwick  on  which 
to  levy  this  writ."  The  declaration  then  concludes  with 
the  averment,  "  That  no  part  of  the  said  judgment  and 
costs  have  been  paid;  that  the  whole  amount  remains  due 
and  uu23aid ;  that  Hathaway  &  Clifford  are  non-residents 
of  the  county  of  Des  Moines."  The  liability  of  the  defeud- 
«nt^i.  bv  reason  of  the  Dromises  is  averred,  and  a  general 


156  SUPREME  COURT  CASES, 

Cameron  v.  Boyle. 


averment  of  a  request  to  pay,  and  a  neglect  and  refusal  to 
pay  the  same,  or  any  part  thereof,  to  the  plaintiff. 

Cameron  &  Dolbee  were  served  with  process,  the  other 
defendants  not  found.  Cameron  appeared  and  filed  his 
demurrer  to  the  declaration  of  the  plaintiffs,  and  for  cause 
of  demurrer,  says : 

Ist^  There  is  no  sufficient  breach  assigned  in  plaintiffs' 
declaration. 

2<i,  Plaintiff  does  not  show,  in  or  by  said  dechiration, 
that  any  right  of  action  has  as  yet  accrued  to  him. 

The  demurrer  was  overruled  by  the  court.  It  ap- 
pears by  the  record,  that  a  rule  to  plead  was  entered  on 
motion  of  the  jilaintiflfs  against  Cameron,  and  that  he 
failed  to  plead  to  the  merits,  having  made  no  further 
appearance  or  defence  in  the  case  after  the  overruling  of 
the  demurrer. 

The  record  also  shows,  that  judgment  of  default  was 
entered  against  the  defendants,  Hathaway,  Clifford  and 
Dolbee. 

On  the  failure  of  Cameron  to  plead,  a  jury  to  assess  the 
damages  of  the  plaintiffs  was  empanelled,  and  a  verdict 
was  rendered  as  follows :  ''  We  the  jury  find  in  debt  the 
sum  of  $3600,  being  the  amount  of  the  penalty  of  the 
bond,  and  assess  the  damages  by  reason  of  the  breaches 
of  the  condition  thereof  at  the  sum  of  $272.68."  Judg- 
ment was  rendered  on  the  verdict  for  the  penalty  $3600 
in  debt,  and  also  for  $272.68,  the  damages  sustained  by 
reason  of  the  breaches  of  the  condition  of  the  bond.  It 
is  also  made  a  part  of  the  judgment,  "  that  execution 
issue  for  the  said  damages  and  the  costs  of  suit,  with 
directions  to  the  sheriff  to  collect  no  more  than  the  money 
so  assessed  and  costs ;  and  further,  that  the  judgment  of 
said  debt  stand  as  a  security  for  any  further  breaches 
that  might  be  assigned  on  said  bond." 

On  the  23d  day  of  October,  1848,  Cameron  &  Dolbee 
sued  out  their  writ  of  error. 

The  cause  is  now  presented  for  adjudication  on  the 
followino-  assiirnments  of  error  : 


BURLINGTON,  MAY,  1849.  157 

Cameron  v.  Boyle. 

1.  The  court  erred  in  overruling'  the  demurrer. 

2.  The  judgment  should  be  respondeat  ouster. 

3.  The  court  erred  in  rendering  judgment  for  the 
penalty,  &c. 

4.  The  judgment  rendered  is  for  more  than  the  damages 
claimed  in  the  declaration. 

It  is  contended  that  the  demurrer  to  the  declaration 
should  have  been  sustained  by  the  court  below,  on  two 
grounds.  1.  That  there  is  no  absolute  averment  of  a 
failure  on  the  part  of  the  defendants  to  pay,  or  satisfy  the 
bond.  2.  The  declaration  does  not  aver  a  proper  and 
sufficient  return  to  the  execution,  issued  on  the  judgment 
in  the  action  of  replevin,  to  prosecute  which  the  bond 
here  sued  was  given. 

By  examining  the  declaration,  we  find  that  after  a  full 
recitation  of  the  proceedings  had  in  the  replevin  suit  as 
inducements,  showing  the  entry  of  final  judgment  against 
Hathaway  &  Clifford,  the  issuing  of  execution  and  the 
return  thereof  by  the  officer,  it  is  averred  "  that  no  part 
of  the  said  judgment  and  costs  has  been  pg-id,  and  that 
the  whole  amount  remains  due  and  owing."  This,  we 
think,  is  sufficient  as  an  averment  of  non-payment,  or 
failure  on  the  part  of  the  obligors  in  the  bond  to  comply 
with  the  terms  of  their  obligation  ;  and  fully  answers  this 
ground  of  demurrer. 

The  second  objection  to  the  declaration  is  based  upon 
an  alleged  variance  between  the  language  used  by  the 
sheriff,  in  making  his  retiu^n  to  the  execution  issued  on 
the  judgment  in  the  action  of  replevin,  and  the  return 
prescribed  by  the  statute.  The  return  of  the  sheriff,  as 
set  forth  in  the  plaintiff's  declaration,  is  "No  property 
found  in  my  bailiwick  upon  which  to  levy  this  vv^rit." 
The  23d  section  of  the  replevin  act  (see  Rev.  Stat.,  537) 
provides,  "  that  no  suit  shall  be  instituted  on  the  bond 
given  by  the  plaintiff  as  provided  in  this  act,  nor  against 
the  officer  who  took  the  same,  until  an  execution  shall 
have  issued  on  the  judgment  in  favor  of  the  defendant,  in 
which  it  shall  be  returned,^  that  sufficient  property  of  the 


158  SUPREME  COURT  CASES, 

Cameron  v.  Boyle. 

plaintiff  cannot  be  found  in  the  county  whereon  to  levy 
and  make  the  amount  of  the  said  judgment." 

The  only  inquiry  then  is,  as  to  the  return  of  the  sheriff 
in  this  case  being  a  substantial  compliance  with  the 
requisition  of  the  statute  ?  "We  think  it  is.  The  return 
of  the  sheriff  is,  "No  property  found,"  &c.  This  return 
not  only  shows  that  "  sufficient  property  "  could  not  be 
found;  but  that  "no  property"  could  be  found,  clearly 
and  fully  including  all  that  is  expressed  by  the  language 
of  the  statute,  and  more.  It  would  be  a  rigid,  and,  we 
think,  unreasonable  rule,  which  would  declare  such  a 
return  bad,  for  want  of  compliance  with  the  requirement 
of  the  statute.  The  averment,  as  to  the  return  of  the 
sheriff,  and  the  failure  of  the  plaintiffs  in  the  replevin  suit, 
and  obligors  in  the  bond,  here  sued  to  satisfy  the  judg- 
ment, is  sufficient  in  law  to  enable  the  j)laintiffs  to  main- 
tain this  action. 

Objections  were  made  to  the  legality  of  the  proceedings 
in  the  action  of  replevin,  in  which  the  bond  here  sued 
was  given.  This  court  cannot,  in  this  proceeding,  go 
behind  the  judgment  in  that  case.  We  must  consider  the 
judgment,  remaining  as  it  does,  unreversed  and  in  force, 
as  rem  judicatum.  As  such,  it  cannot  be  impeached 
collaterally  for  mere  irregularity.  Besides,  these  objec- 
tions relate  to  matter  of  inducement  in  the  declaration, 
which  might  have  been  omitted;  and  without  which  it 
would  have  been  good  in  law. 

The  declaration  avers  that  the  judgment  remains 
unsatisfied,  and  the  proper  return  of  the  sheriff  on  the 
execution  is  set  forth  substantially,  so  as  to  justify  the 
commencement  of  the  suit  under  the  statute.  The  im- 
portant averments  of  the  declaration  are  made  with 
sufficient  regard  to  the  rules  of  pleading,  so  as  to  put 
the  defendants  on  their  defence  in  accordance  with  the 
practice. 

There  is  no  error  in  the  judgment  of  the  court,  over- 
ruling the  demurrer. 

But  it  is  contended,  that  the  judgment  on  the  demurrer 


RURLINGTON,  MAY,  1849.  159 

Cameron  v.  Boyle. 

was  improperly  entered  ;  that  the  court  should  have  given 
a  judgment  of  respondeat  ouster;  that  the  defendants 
were  estopped,  by  the  judgment  of  the  court,  from  plead- 
ing to  the  merits. 

The  record  shows,  that  after  the  default  had  been 
entered  against  Dolbee,  on  the  same  day  of  the  filing  of 
the  demurrer,  a  rule  to  plead  by  a  time  certain,  during  the 
term,  was  taken  against  Cameron,  and  that  the  demurrer 
being  overruled,  the  default  was  confirmed  as  to  him,  he 
having  failed  to  plead.  This  was  then  a  judgment  for 
want  of  a  plea. 

We  consider  the  practice  in  this  state  well  settled  on 
this  point.  The  demurrer  being  overruled,  the  defendant 
had  his  election  to  stand  on  it,  or  to  plead  over.  It  was 
his  privilege  to  move  the  court  for  leave  to  plead  over, 
and  proceed  to  trial  on  the  merits.  Having  failed  to  do 
this,  the  court  was  justifiable  in  presuming  that  he  stood 
upon  his  demm'rer.  Upon  failing  to  plead  by  the  time 
appointed,  the  judgment  against  him  was  a  legal  conse- 
quence. Tins  is  the  practice,  not  only  in  this  state,  but 
it  prevails  elsewhere.  Godfrey  v.  Buckmaster,  1  Scam., 
447  ;  Gilbert  v.  Maggord^  ib.^  471  ;  Conradi  v.  jEvar>'>,  2 
ib.,  186. 

The  objection  to  the  judgment  rendered  for  the  penalty, 
we  think  is  not  well  taken. 

This  being  an  action  at  law  on  a  penal  bond,  a  judgment 
for  the  penalty  was  proper.  From  the  character  of  the 
instrument,  there  could  be  but  one  breach  assigned.  It 
was  competent  for  the  plaintiffs  to  sue  upon  the  bond, 
and  at  the  same  time  declare  and  claim  damages  for  the 
breach  of  the  covenant.  Rev.  Stat.,  p.  471,  §  16.  Such 
has  been  the  practice  in  this  state  under  the  statute,  which 
provides  that  the  judgment  may  be  entered  in  debt  for  the 
penalty,  as  a  security  for  the  breaches,  and  also,  at  the 
same  time,  if  breaches  are  assigned  in  the  declaration,  for 
such  damages  as  may  be  proven  to  have  been  sustained  by 
the  plaintiffs.  This  mode  of  procedure  fully  protects  the 
interests  of  the  parties  litigant,   whilst   it  prevents,  in 


IGO  SUPREME  COURT  CASEiS, 

Cameron  v.  Boyle. 

cases  like  this,  circuity  of  action  and  accumulation   of 
costs.     In  this  there  is  no  error. 

The  4th  error  assigned  is  well  taken.  The  plaintiffs 
declare  for  the  sum  of  $100,  as  the  damages  which 
they  have  sustained  hy  reason  of  the  breach  of  the 
condition  of  the  bond.  The  measure  of  the  damages 
sustained  by  the  plaintiffs  did  not  depend  upon  the 
penalty,  but  upon  the  breach  of  the  condition  of  the  bond. 
The  plaintiffs,  upon  the  ascertainment  of  the  amount  of 
damages,  by  proof  to  the  jury,  were  entitled  to  recover 
pro  tanto. 

The  sum  assessed  by  the  jury,  and  for  which  judgment 
is  entered,  is  $272.68.  That  claimed  in  the  writ  is  $3600, 
debt  and  $100  damages  ;  judgment  is  entered  for  that 
amount  in  debt,  and  $272.68  as  damages.  The  declara- 
ation,  as  to  the  damages,  follows  the  writ  of  summons 
claiming  (as  damages)  $100.  This  sum  is  clearly 
claimed,  in  the  declaration,  as  the  plaintiffs'  dam- 
ages for  the  breach  of  the  condition  of  the  bond.  The 
plaintiffs  can  recover  no  more  than  they  have  claimed 
in  their  declaration,  and  as  the  judgment  in  debt  was  to 
the  extent  of  the  writ  and  declaration,  the  judgment  and 
damages  could  not  be  any  part  of  the  judgment  for  debt 
as  claimed  in  the  argument.  There  is,  therefore,  in  this, 
error  in  the  judgment  of  the  court  below.  Horner  v. 
Hunt,  .1  Blackf.,  214  ;  3  Scam.,  348. 

This  error  may,  however,  be  cured  by  the  plaintiff 
coming  into  com't  now,  and  entering  a  remittitur,  other- 
wise the  judgment  is  reversed. 

Judgment  refersed. 

D.  Rorer,  for  plaintiff  in  error. 

J,  C»  Hall,  for  defendant. 


BURLINGTON,  MAY,  1849.  161 


Hine  v.  Houston. 


HI?^E  V.  HOUSTON. 

After  going  into  a  trial  upon  the  merits,  and  the  plaintiff  has  proved  his  claim 
for  work,  the  defendant  should  not  be  permitted  to  introihiee  evidence 
that  the  work  was  done  for  him  and  another  jointi}',  in  order  to  avoid 
the  liability. 

The  omission  to  join  all  the  parties  should  be  taken  advantage  of  by  plea  in 
abatement. 

Error  to  Lee  District  Court. 

Opinion  hy  Kinney,  J.  This  was  an  action  commenced 
before  a  justice  of  the  peace  for  work  and  lahor,  in  which 
the  defendant  in  error  recovered  a  judgment.  Hine  ap- 
pealed to  the  district  court,  and  upon  trial  a  judgment  was 
rendered  against  him  for  $97.41. 

From  the  bill  of  exceptions  taken  on  the  trial  by  Hine, 
it  appears  that  after  Houston  had  closed  his  evidence,  the 
defendant  below  offered  to  prove  that  the  work  was  done 
for  him  and  Adam  Hine,  that  they  were  jointly  interested 
in  the  work,  and  that  it  was  done  by  Houston  on  their 
joint  account.  The  defendant  in  error  objected  to  the 
introduction  of  this  testimony;  it  was  held  by  the  court  to 
be  inadmissible.  To  this  ruling  Hine  excepted,  and  assigns 
it  for  error. 

This  was  not  error,  and  the  court  was  right  in  excluding 
from  the  jury  the  testimony  offered.  The  plaintiff  in  error 
could  not,  at  that  stage  of  the  trial,  prove  the  joint  lia- 
bility of  a  third  person,  and  thus  escape  an  individual  lia- 
bility. As  Adam  Hine  was  not  a  party  defendant,  the 
introduction  of  testimony  fastening  a  joint  liability  upon 
Aim,  could  not  avail  anything  upon  the  trial,  except  to 
defeat  Houston  in  his  action.  He  could  not  without  the 
proper  j^lea  (having  gone  to  trial)  be  permitted  in  this 
way  to  prevent  a  recovery. 

By  the  rules  of  pleading,  an  ample  remedy  is  provided 
where  there  is  an  omission  of  the  Eecessarv  parties,  or  a 
nonjoinder  of  defendants.     But  the  law  io  well  settled, 


1G2  CLPREME  COURT  CASES, 

Bucklej'  V.  The  State. 

that  he  could  only  take  advantage  of  this  by  a  plea  in 
abatement. 

If  a  party  defendant  be  omitted,  whether  liable  to  be 
jointly  sued  upon  a  personal  contract,  or  as  person  of  the 
23rofits  of  reol  estate  as  in  debt  for  a  rent  charge,  the 
advantage  can  only  be  taken  by  a  plea  in  abatement,  veri- 
fied by  affidavit;  and  if  this  be  omitted,  the  defendant 
will  be  chargeable  with  the  whole  debt.     1  Chitty's  PL,  31. 

The  omission  of  a  joint  contractor  must  be  pleaded  in 
abatement.  Chitty's  PI.,  441 ;  Lartony.  Gilliam,  1  ^com.., 
577. 

That  a  plea  in  abatement  was  the  proper  remedy  in  this 
case  for  the  plaintiff  in  error,  if  what  he  sought  to  prove 
was  true,  we  think  too  clear  to  require  further  notice. 

Judgment  affirmed. 

J.  C.  Flail,  for  plaintiff  in  error, 

W,  J,  Cochran,  for  defendant. 


BUCKLEY  V.  THE  STATE. 

An  indictment  is  good,  which  substantially  follows  the  language  of  the 
statute  defining  the  offence. 

Not  necessary  that  the  indictment  should  charge  the  offence  in  the  very 
language  of  the  statute,  if  words  of  the  same  import  and  equally  com- 
prehensive are  used. 

The  name  of  the  person  to  whom  counterfeit  money  was  passed  should  be 
set  forth  with  certainty  in  the  indictment,  unless  the  name  is  unknown; 
and  if  so,  that  fact  should  be  stated. 

While  unmeaning  forms  should  not  be  enforced,  clearness  and  certainty^ 
should  be  required  in  pleadings. 

Error  to  Louisa  District  Court. 

Opinion  hy  Greene,  J.     This  was  an  indictment  for 
passing  counterfeit  mone3^     The  indictment  cliari-es  that 


BURLINGTON,  MAY,  1849.  163 

Buckley  v.  The  State. 

Sylvaiius  Buckley  of  &c.,  on  &c.,  had  in  his  possession 
in  &c.,  seven  pieces  of  false  money  and  coin,  forged  and 
counterfeited  to  tlie  likeness  and  similitude  of  the  good 
and  legal  money  and  coin  within  this  state,  made  current 
by  the  law  and  usage  thereof,  called  half  dollars,  and  that 
the  said  Sylvanus  Buckley  the  aforesaid  pieces  of  false 
forged  and  counterfeit  coin  then  and  there  did  pass,  utter 
and  tender  in  payment  as  good,  with  intent,  one  Italian 
M.  Myler,  then  and  there  to  injm-e  and  defraud ;  the  said 
Sylvanus  Buckley  then  and  there  well  knowing  the  afore- 
said pieces  of  coin  to  be  false,  forged  and  counterfeit,  &c. 

The  question  coming  up  on  demurrer  in  the  court 
below,  the  indictment  was  pronounced  good  and  sufficient 
in  law,  and  the  demurrer  overruled.  The  correctness  of 
this  ruling  is  now  controverted. 

It  having  been  repeatedly  decided  by  this  court  that  an 
indictment  is  good  which  substantially  follows  the  lan- 
gutige  of  the  statute  defining  the  offence,  we  have  but  to 
inquire  whether  the  one  at  bar  can  be  supported  under 
that  test. 

The  clause  of  the  statute  upon  which  this  prosecution 
appears  to  have  been  commenced  provides,  that  "if  any 
person  shall  counterfeit  any  of  the  coins  of  gold,  silver  or 
copper  currently  passing  in  this  territory,  or  shall  alter 
or  put  off  counterfeit  coin  or  coins,  knowing  them  to  be 
such,  &c.,  every  person  so  offending,  upon  conviction 
thereof,  shall  be  fined,"  &c. 

It  is  objected  to  the  indictment,  that  the  words  used  as 
descriptive  of  the  offence  are  not  the  same  as  those  used 
in  the  statute.  It  is  true  that  it  does  not  contain  the  words 
"  put  off,"  but  words  of  the  same  legal  import  and  equally 
comprehensive  are  used.  The  words  "  pass  and  utter  "  are 
substantially  the  same,  t-liey  include  the  words  ''put  off," 
and  are  even  more  significant  of  the  offence  charged.  We 
regard  the  indictment  in  that  particular  as  a  substantial 
compliance  with  the  statute.  And  the  scienter,  which  is 
also  objected  to,  is  charged  in  sufficiently  explicit  terms. 

But  an  objection  is  urged  to  the  indictment  of  a  more 


164  SUPREME  COURT  CASES, 


Buckley  v.  The  State. 


serious  character.  It  does  not  in  express  terms  allege 
that  the  counterfeit  money  was  passed  or  uttered  to  anj 
particular  person,  though  it  contains  language  that  might 
justify  the  inference,  that  the  money  was  passed  upon 
Italian  M.  Myler,  still,  as  it  does  not  expressly  charge  to 
that  effect,  it  leaves  room  for  doubt.  The  name  of  the 
person  to  whom  counterfeit  money  was  passed  should  be 
set  forth  in  the  indictment  with  certainty,  unless  the  name 
of  such  person  is  unknown,  and  if  so,  that  fact  should  be 
stated.  Tlie  name  of  such  third  person  should  be  desig- 
nated as  the  one  upon  whom  the  offence  was  committed, 
not  only  because  he  is  injured,  but  because  his  designation 
is  material  as  descriptive  of  the  offence.  Butler  v.  T/ie 
State,  5  Blackf.,  280. 

In  relation  to  the  necessity  of  setting  forth  the  names 
of  third  persons  in  an  indictment,  see  1  Chitty's  C.  L., 
211;  Davis  v.  The  State,  7  Hammond,  204. 

This  defect  being  material  in  describing  the  offence,  we 
cannot  regard  it  as  within  the  meaning  of  the  statute,  which 
declares  that  "  no  indictment  shall  be  quashed  if  an  in- 
dictable offence  is  clearly  charged  therein."  Rev.  Stat., 
153,  §  46.  There  is  a  want  of  clearness,  a  degree  of  am- 
biguity in  that  part  of  the  indictment,  which  renders  it 
inapplicable  to  the  saving  clause  in  the  statute.  It  may 
as  well  be  observed,  however,  that  the  defect  complained 
of  in  this  case  would  not  prove  availing  after  verdict,  if 
not  previously  raised  by  demurrer  or  on  motion  to  quash. 

Although  mere  nicety  and  unmeaning  forms  should  not 
be  encouraged  in  pleadings,  especially  in  criminal  pro- 
ceedings, where  public  security  mainly  depends  upon  the 
prompt  administration  of  justice,  still  carelessness,  result- 
ing in  uncertainty  and  ambiguity,  cannot  safely  be  over- 
looked by  courts  of  justice.  Incalculable  mischief  must 
necessarily  result  to  parties,  uncertainty  and  disgrace  in 
legal  proceedings,  unless  pleadings  are  framed  with  sub- 
stantial clearness  and  certainty. 

Judgment  reversed. 

D.  Rorer,  for  plaintiff  in  error. 


BURLINGTON,  MAY,  1849.  165 

Barney  v.  Chittenden. 


BARNEY  V.  CHITTENDEN  et  al 

The  conclusive  effect  of  the  judgment  of  partition  of  the  half-breed  lands,  as 
establislied  by  Wright  v.  Marsh,  Lee  &  Delavan. 

A  majority  of.  the  trustees,  under  the  articles  of  association,  of  the  New  York 
Company,  have  power  to  convey  the  title  of  said  company  to  lands  in  the 
"  half-breed  tract,"  and  the  conveyance  may  be  made  by  themselves,  or  by 
their  attorney. 

Where  it  appears  to  the  court  that  no  person  interested  intends  to  object  to 
the  probate  of  a  will,  it  may  be  granted  upon  the  testimony  of  one  sub- 
scribing witness. 

The  probate  court,  though  limited  and  inferior  in  power,  had  complete  origi- 
nal jurisdiction  in  administering  the  estates  of  decedents;  and  any  judg- 
ment, order  or  decree,  upon  a  subject  matter,  and  between  parties  over 
which  the  court  had  jurisdiction,  cannot  be  collaterallj'  questioned. 

It  will  not  be  presumed  that  the  probate  of  a  will  was  granted  without 
sufficient  proof,  nor  that  letters  testamentary  were  issued  without  the 
bond  required  by  law. 

Erkor  to  Lee  District  Court. 

Opinion  by  Williams,  C.  J.  This  is  an  action  of  right, 
commenced  in  the  district  court  of  Lee  county  by  John 
McKean  against  John  C.  Barney,  to  recover  the  posses- 
sion of  a  tract  of  land  described  as  the  west  half  of  the 
south-west  quarter  of  section  13,  in  township  65  north, 
of  range  5  west  in  said  county,  which  he  claimed  in  fee 
simple.  The  suit  is  instituted  for  the  immediate  posses- 
sion, and  damages  for  detention  of  the  premises.  On 
the  loth  day  of  October,  1846,  John  C.  Barney  appeared 
and  filed  his  plea  denying  the  right  of  McKean,  and 
issue  was  joined.  On  the  10th  day  of  June,  1847,  the 
death  of  John  McKean,  the  plaintiff,  was  suggested,  and 
his  executors,  A.  B.  Chittenden  and  William  F.  Telford, 
were  substituted  and  entered  as  parties  to  the  suit. 
The  cause  was  tried  at  November  term,  1848,  and  a  ver- 
dict and  judgment  thereon  for  the  plaintiffs.  It  is  now 
hereupon  a  writ  of  error,  and  the  following  are  the  assign- 
ments : 

1,  The  court  erred  in  admitting  in  evidence  the  books 


1G6  SUPREME  COURT  CASES, 

Barney  v.  Chittenden. 

containing  the  record  of  partition,  as  evidence  of  legal  title 
in  Marsh,  Lee  &  Delavan  to  the  property  in  question. 

2.  In  admitting  the  power  of  attorney  from  Marsh,  Lee 
&  Delavan  to  D.  W.  Kilbonrne,  and  the  deed  from  Marsh, 
Lee  &  Delavan  by  D.  W.  Kilbonrne  to  Jolm  McKean. 

3.  In  admitting  the  will  of  John  McKean,  deceased, 
the  probate  thereof,  and  letters  testamentary,  as  set  forth 
in  said  bill  of  exceptions,  as  evidence  of  legal  title  in  said 
plaintiffs  below. 

4.  The  court  erred  in  excluding  the  proof  offered,  and 
the  instructions  asked  by  defendant  below,  as  contained 
and  set  forth  in  said  bill  of  exceptions  ;  and  in  refusing 
to  rule  out  the  record  of  partition,  on  the  ground  that 
part  of  said  tract  at  the  time  of  partition  was  situated  in 
another  county. 

Chittenden  and  Telford,  executors  of  John  McKean  de- 
ceased, the  plaintiffs,  claim  the  land  by  virtue  of  purchase 
and  a  deed  of  conveyance  from  Marsh,  Lee  &  Delavan, 
trustees  of  the  New  York  Land  Company,  by  David  W. 
Kilbonrne,  their  attorney.  On  the  trial,  the  plaintiffs 
offered  in  evidence  the  treaty  of  the  4th  of  August,  1824, 
between  the  United  States  and  the  Sac  and  Fox  Indians, 
and  the  act  of  Congress  of  the  80th  of  June,  1834,  en- 
titled "An  act  to  relinquish  the  reversionary  interest  of 
the  United  States  in  a  certain  Indian  reservation  lying 
between  the  rivers  Mississippi  and  Des"  Moines."  And 
then  offered  to  read  in  evidence  from  two  books  produced 
by  the  clerk  of  this  court,  as  of  record  in  his  office,  among 
the 'proceedings  and  judgments  of  the  district  court  in  this 
county,  under  the  territorial  government,  and  bearing  the 
signature  of  the  territorial  judge,  record  of  certain  pro- 
ceedings partitioning  the  "  half-breed  tract  "  among  the 
owners,  but  offered  no  other  evidence  than  what  was 
furnished  by  these  circumstances  of  the  genuineness  or 
authenticity  of  the  records,  or  that  the  books  were  what 
they  purported  to  be,  or  that  they  were  found  in  the 
proper  depository. 

To  the  admission  of  this  evidence,  the  counsel  for  the 


BURLINGTON,  MAY,  1840.  167 

Barney  v.  Chittenden. 

defendant  objected.  This  objection  was  overruled  by  the 
court,  and  the  evidence  read  to  the  jury. 

By  the  treaty  made  between  the  United  States  and  the 
Sac  and  Fox  tribes  of  Indians,  on  the  4th  of  August,  1824, 
a  large  and  valuable  tract  of  country  lying  between  the 
Des  Moines  and  the  Mississippi  rivers  was  reserved  for 
the  half-breeds  of  the  Sac  and  Fox  tribe  of  Indians.  By 
an  act  of  Congress  passed  the  30th  of  June,  1834,  the 
reversionary  interest  of  the  United  States  in  this  land 
was  relinquished,  so  as  to  vest  the  fee  simple  title  to  them, 
in  the  half-breeds  aforesaid.  The  treaty  and  act  of  Con- 
gress both  speak  of  them  as  a  class  of  people  known  as 
"  half-breeds,"  without  naming  them  individually.  Josiah 
Spalding  and  others,  who  claimed  to  be  the  owners  by 
purchase  of  shares  or  undivided  interests  in  these  half- 
breed  lands,  on  the  14th  day  of  April,  a.d.  1840,  filed 
their  petition  for  the  partition  of  these  lands  among  the 
owners  thereof.  The  petition  sets  forth,  that  the  tract 
contains  about  119,000  acres  more  or  less.  The  names  of 
claimants  are  set  forth'  in  the  petition,  claiming  twenty- 
three  and  one-third  shares,  to  which  they  claim  the  title 
in  fee  simple. 

This  proceeding  for  partition  was  commenced  and  con- 
ducted to  judgment  under  the  general  partition  law  of  the 
territory.  In  the  case  of  Mitchell  D.  Wright  v.  Marsh, 
Lee  ^  Delavan*  this  court  has  decided  the  question  of 
the  legal  effect  of  the  judgment  in  partition.  It  is,  there- 
fore, not  necessary  here  to  consider  that  question.  It  is 
sufficient  to  say,  that  the  jurisdiction  of  the  court,  and  the 
validity  of  the  judgment  of  the  district  court  of  Lee 
county,  partitioning  the  land  among  the  owners  therein 
named,  have  been  established  and  fixed  for  all  the  purposes 
of  this  case  by  that  decision. 

The  effect  of  the  proceeding  in  partition,  under  the 
statute,  in  imparting  title  to  the  holders  of  shares  under 
the  judgment,  is  also  established  by  the  same  decision. 

*  Ante,  94. 


168  SUPREME  COURT  CASES, 

Barney  v.  Chitteuden. 

As  tlie  first  assignment  of  error  is  disposed  of,  we 
will  proceed  to  consider  the  questions  involved  in  tlie 
second. 

The  judgment  in  partition  shows  that  the  land  in  dis- 
pute is  a  portion  of  the  "half-breed  tract"  which  fell 
among  the  shares  of  Marsh,  Lee  &  Delavan,  as  trustees  of 
the  New  York  Company.  John  McKean  in  his  lifetime 
held  the  land  in  question  by  virtue  of  a  deed  of  conveyance 
from  David  W.  Kilbourne,  who  made  and  executed  it, 
as  the  attorney  of  Marsh,  Lee  &  Delavan,  trustees  of 
the  New  York  Company,  which  deed,  together  with  tlie 
power  of  attorney,  and  the  articles  of  association  of  that 
company,  were  offered  and  read  in  evidence  to  the  jury 
by  the  plaintiff.  To  this  evidence,  the  defendants'  counsel 
objected.  The  objection  was  overruled  and  exception 
taken.  It  is  contended  that  the  conveyance  from  Marsh, 
Lee  &  Delavan  by  Kilbourne,  their  attorney,  to  McKean 
is  of  no  effect,  because,  by  the  articles  of  association  of 
the  company,  less  than  the  whole  number  of  trustees 
could  not  convey  title  to  their  lands ;  whereas,  in  this 
case,  but  three  of  the  trustees  make  the  deed,  by  their 
attorney.  The  power  of  the  three  trustees,  Marsh,  Lee  & 
Delavan,  to  convey  the  title  to  the  land  by  attorney  or 
otherwise,  is  denied. 

By  reference  to  the  judgment  in  partition,  apportioning 
the  "  half-breed  tract"  among  the  owners,  we  find  that  the 
interest  or  shares  of  the  New  York  Company  were  set-off 
to  and  vested  in  Marsh,  Lee  &  Delavan  in  trust,  for  the 
members  thereof,  without  naming  any  other  persons  as 
trustees.  The  two  other  trustees,  Aikin  and  Galland, 
originally  named  in  the  articles  of  association  with  them, 
are  not  recognized  m  the  proceeding  in  partition,  or  the 
judgment.  The  partition  law  of  this  state,  under  which 
this  land  was  divided  among  the  owners,  provides  for  the 
establishment  of  the  interest  or  titles  of  the  several  claim- 
ants by  evidence  and  trial  by  jury,  unless  the  parties  to  the 
proceeding  shall  otherwise  agree;  and  that  when  the  various 
interests   or   shares   shall    be   so   ascertained,  judgment 


BURLINGTON,  MAY,  1849.  169 


Barney  v.  Chittenden. 


shall  be  rendered  confirming  them,  and  that  partition  be 
made  accordingly.     Rev.  Stat.,  461,  §§  16-19. 

Tliis  judgment  in  partition  had  the  effect  of  establish- 
ing title  to  these  lands  in  those  whose  interests  were  then 
passed  upon  and  adjudicated.  Such  has  been  the  decision 
of  this  court  in  the  case  of  Wright  v.  Marsh,  Lee  j'Delavan, 
decided  at  this  term.  The  New  York  Company,  then,  be- 
ing the  owners  of  that  portion  of  the  "half-breed  tract" 
which  was  set-off  to  them  by  the  judgment  in  partition, 
might  dispose  of  it  in  accordance  with  the  provisions  of 
their  articles  of  association.  We  do  not  deem  it  necessary 
here  to  enquire  how  or  why  only  three  of  the  trustees 
of  the  company,  of  the  five  named  in  the  articles  of  asso- 
ciation, are  made  parties  in  the  judgment  of  partition,  as 
trustees,  to  whom,  by  the  decision  of  the  court,  the  inter- 
ests of  the  persons  composing  that  company  are  committed. 
The  articles  of  association,  properly  construed,  must  solve 
the  question  here  raised.  Then,  had  a  majority  of  the 
trustees  a  right  to  contract  for  the  sale  of  the  company's 
land,  and  make  a  title  to  the  purchaser  ?  And  if  so,  could 
such  majority  empower  an  attorney  to  make  such  contract, 
and  impart  the  title  to  the  land  ? 

It  is  contended  for  the  plaintiff  in  error,  that  to  enable 
the  trustees  to  sell  and  convey  the  title  in  fee  simple  to 
]\IcKean,  that  all  should  have  joined  in  the  act,  and  that 
as  only  three  out  of  the  five  have  done  so,  therefore  the 
deed  is  void  and  conveys  no  title.  To  sustain  this  position, 
the  articles  of  association  are  referred  to. 

In  order  to  a  proper  decision  of  this  question,  it  is  neces- 
sary to  examine  into  the  object  of  the  association,  and 
fairly  ascertain  the  intention  of  the  parties,  as  expressed 
in  their  articles.  They  were  entered  into  on  the  22d  day 
of  October,  1836,  by  Joshua  Aikin,  Isaac  Galland,  Samuel 
Marsh,  Benjamin  F.  Lee,  William  E.  Lee,  George  P 
Shipman,  Henry  Seymour,  Edward  C.  Delavan  and  Erastus 
Corning,  to  purchase  certain  lands  situated  between  the 
Des  Moines  and  Mississippi  rivers,  then  in  Wisconsin 
territory,  pai't  of  the  tract  of  land  known  as  the  "  half- 
VoL.  n.  12 


170  SUPREME  COURT  CASES, 

Barney  v.  Chittenden. 

breed  tract."  After  setting  forth  the  nature  of  the  tenure 
by  which  the  parties  were  to  hold  the  lands  purchased, 
the  extent  of  the  investment  of  capital,  &c.,  in  order  the 
better  to  enable  them  to  manage  the  property,  &c.,  among 
other  things  it  is  provided,  that  the  title  to  all  the  land 
purchased  for  the  use  of  the  company  shall  be  conveyed 
to  and  vested  in  the  trustees,  viz.,  Joshua  Aikin,  Isaac 
Galland,  Samuel  Marsh,  William  E.  Lee,  and  Edward  C. 
Delavan,  as  joint  tenants,  and  not  as  tenants  in  common,  in 
trust  for  the  persons  and  parties  interested  therein.  The 
proportions  in  interest  of  each  of  the  parties  are  &^ed ; 
and  then  the  third  in'incipal  division  of  the  agreement 
or  article  proceeds  to  provide  fjr  the  trustees,  their 
powers,  in  the  following  terms  :  ''  Thirdly,  And  the  parties 
hereto  covenant  and  agree,  that  the  said  trustees,  or  a 
majority  of  them,  shall  have  power,  and  it  shall  be  their 
duty— 

"1.  To  cause  the  title  to  said  lands  and  property  to  be 
thoroughly  examined  and  established,  in  such  form  of  pro- 
ceeding as  they  may  be  advised  to  be  proper  to  protect 
the  parties  in  interest  against  any  loss  or  question  on 
account  thereof. 

"2.  To  cause  the  land  purchased  to  be  surveyed,  so  that 
the  exact  quantity  of  land  acquired  by  the  parties  hereto, 
by  the  purchases  abeady  made,  or  hereafter  to  be  made  as 
herein  provided,  shall  be  ascertained." 

The  thhd  subdivision  directs  that  they  shall  cause  to  be 
surveyed  and  laid  out  town  sites,  &c. 

The  fourth  subdivision  of  the  third  article  then  is  as  fol- 
lows :  "  And  the  said  trustees  are  hereby  authorized  to  sell 
and  convey  from  time  to  time,  as  they  may  find  oppor- 
tunity, any  part  of  the  lands  so  purchased,  on  such  terms 
as  to  payment,  and  to  take  such  securities  for  the  pur- 
chase-money, or  any  part  thereof,  as  they  shall  think  fit." 

The  fifth  subdivision  of  the  same  article  is  as  follows  : 
"  And  the  trustees,  or  a  majority  of  them,  are  also  author- 
ized to  make  all  contracts,  and  do  all  lanfid  things  and 
acts  that  may  be  necessary  or  proper,  to  carry  into  efi'ect 


BUJUJXGTON,  MAY,  1849.  171 

Barney  v.  Chittenden. 

the  objects  of  tliis  agreement,  and  to  promote  the  interests 
of  the  parties  concerned,  in  respect  to  the  property  pm*- 
chased,  and  every  part  thereof." 

The  sixth  and  last  subdivision  of  this  third  article  pro- 
vides for  the  appointing  of  attorneys,  clerks,  &c. 

The  succeeding  articles  provide  for  the  management  of 
the  lands,  and  among  other  things,  for  their  sale,  and  the 
manner  in  which  the  avails  in  money  are  to  be  applied  for 
the  benefit  of  the  parties. 

Taking  these  articles  together,  we  find  no  difficulty  in 
ascertaining  the  intent  of  the  jiarties  in  reference  to  the 
power  given  to  the  trustees,  and  the  manner  in  which  that 
power  was  to  be  exercised  in  acquiring,  managing  and  dis- 
posing of  the  lands.  To  supersede  the  necessity  of  all 
the  parties  to  the  agreement  of  association  acting  in  the 
conducting  of  the  business  of  the  company,  with  a  view 
to  convenience  and  economy,  five  trustees  were  named 
and  duly  appointed  to  act  for  the  whole  of  the  parties 
interested.  By  express  terms  they  are  to  receive,  hold 
and  impart  title  to  the  lands  for  the  use  and  in  trust  for 
the  company. 

The  third  article  designates  the  powers  of  the  trustees, 
and  taken  in  connection  with  the  other  portions  of  the 
agreement,  there  can  be  no  doubt  that  it  was  intended 
that  their  power  should  be  j)leuary,  in  the  purchase,  man- 
agement and. disposal  of  the  lands  by  the  act  of  the 
majority  of  their  number.  Any  other  constructiou  would, 
we  think,  thwart  the  parties  in  the  accomplishment  of  the 
design  contemplated.  Any  one  of  them,  objecting  to  the 
sale  of  any  portion  of  the  land,  would  render  it  impossible, 
when  it  expressly  provided  that  they  may  sell  to  accom- 
plish the  object  of  association.  Taking  the  whole  agree- 
ment together,  we  find  no  difficulty  in  coming  to  the 
conclusion  that  a  majority  of  the  trustees  had  power  to 
impart  the  title  to  the  plaintiff. 

But  this  question  is  not  left  for  solution  to  inference,  nor 
is  it  left  for  decision  dependent  upon  rules  of  construction. 
The  power  to  sell  and  convey  the  title,  is  expressly  given 


172  SUPREME  COURT  CASES, 

Barney  v.  Chittenden. 

to  the  trustees,  or  a  majority  of  them,  by  the  tliird  article 
or  general  division  of  the  agreement  or  articles  of  associa- 
tion. This  is  apparent  upon  an  examination  of  this  article. 
It  provides,  that  "  the  parties  mutually  covenant  and  agree 
that  the  said  trustees,  or  a  majority  of  them,  shall  have 
power  to  do  and  perform  certain  acts ; "  and  proceeds  to 
uesignate  and  classify  them  by  numbers,  from  one  to  six 
In  subdivision.  Much  stress  has  been  put  by  the  counsel 
for  the  plaintiff  in  error  upon  the  language  of  the  fourth 
subdivision  of  this  article.  This,  it  is  alleged,  gives  to 
the  whole  of  the  trustees  the  power  to  sell  and  convey  the 
lands,  in  terms  which  are  specific,  and  excludes  the  idea 
that  a  majority  might  do  so.  The  language  is :  "  And 
the  said  trustees  are  hereby  authorized  to  sell  and  convey,*' 
&c.  Taken  in  proper  connection  Avith  the  commencement 
of  the  article,  where  it  is  expressly  jjrovided,  that  "  the 
said  trustees,  or  a  majority  of  them,  shall  have  power,  and 
it  shall  be  their  duty,"  to  do  the  things  specified  in  the 
several  subdivisions  following,  of  which  this  is  one,  we 
think,  by  a  proper  observance  of  the  rules  of  legal  con- 
struction, as  well  as  those  governing  the  use  of  language, 
the  words,  ''  and  the  said  trustees,"  will  be  taken  to  refer 
to  the  trustees  as  a  body,  and  as  set  forth  in  the  commence- 
ment. This  conclusion  is  sustained  by  the  other  parts  of 
the  agreement,  reasonably  and  fairly  construed  in  view  of 
the  obvious  design  of  the  parties  in  forming  the  associa- 
tion, and  the  reasonable  use  of  the  means  adopted  for  its 
accomplishment.  But  this  point  is  clearly  set  at  rest  by 
the  fifth  subdivision  of  this  article.  The  parties  to  the 
agreement,  after  specifying  certain  things  which  the  trus- 
tees may  do,  here  empowers  ''  the  said  trustees,  or  a 
majority  of  them,  to  make  all  contracts,  and  to  do  all  law- 
ful things  and  acts  necessary  or  proper  to  carry  into  effect 
the  objects  of  this  agreement,"  &c.  This  we  consider  is 
designed  to  give  plenary  power  to  the  trustees,  or  a  majority 
of  them^  as  a  board  to  act  for  the  company. 

As  we  have  already  said,  a  different  construction  of  the 
articles  of  association  would  not  be  warranted  by  the  Ian- 


BURLINGTON,  MAY,  1849.  173 

Barney  v.  Chittenden. 

giiage  used,  and  would  put  the  parties  to  the  agreement 
in  the  unreasonable  position  of  using  means  most  likely 
to  prevent  the  attainment  of  the  object  for  which  the 
company  was  formed. 

This  is  not  a  mere  trust  to  hold  the  title  to  lands,  for 
the  use  and  benefit  of  persons  incapable  of  contracting. 
The  design  of  the  association  is  to  get  gain  and  profit  by 
the  purchase  and  sale  of  lands.  The  purposes  and  object 
of  the  association  are  clearly  set  forth  in  the  articles.  It 
is  urged  by  the  counsel  of  the  defendant  that  the  deed 
from  Kilbourne,  the  attorney  of  Marsh,  Lee  and  Delavan, 
the  trustees  of  the  company,  to  McKean,  is  void,  and  con- 
veys no  title,  for  the  reason  that  only  three  of  the  five 
trustees  have  joined  in  making  it ;  that  all  the  trustees 
must  act  conjointly  in  executing  the  trust.  The  case  of 
Sinclair  v.  Jackson^  8  Cowen,  p.  543,  is  cited  to  support 
this  doctrine.  In  that  case  it  is  decided  that  "  where  a 
trust  is  delegated  to  several  for  a  mere  private  purpose, 
they  must  all  join  in  its  execution,"  and  the  question  is 
then  discussed  as  to  the  power  of  trustees  to  lease  without 
express  power.  But  Ave  find  that  the  chancellor  who 
dvj.ivered  the  opinion  of  the  court  in  that  case,  in  discuss- 
ing the  question  as  to  the  power  of  trustees  to  convey  the 
trust  estate  separately,  says  :  "  As  applicable  to  joint  ten- 
ants of  estates  in  their  own  rights,  this  position  (that  they 
might  lease)  may  be  true ;  but  the  principle  cannot  apply 
to  trustees.  They  have  no  separate  interests  of  their  own 
on  which  the  separate  deeds  can  operate  ;  they  conjointly 
represent  the  interests  of  the  cestui  que  trust,  and,  unless 
specially  authorized  to  act  separately  by  the  instrument 
creating  the  trust,  they  can  make  no  disposition  of  the 
trust  estate  vested  in  them,  otherwise  than  by  their  joint 
deed."  This  applies  directly  to  the  case  at  bar.  We 
ha\e  already  shown  that  the  articles  of  association 
specially  authorize  a  majority  of  the  trustees  to  sell 
and  convey  the  company  lands,  so  that  the  principle 
here  avowed  establishes  the  validity  of  the  deed  to 
McKeau. 


174  SUPREME  COURT  CASES, 

Barney  v.  Chittenden. 

Among  the  antliorities  cited,  none  have  questioned  the 
acts  of  the  trustees,  when  performed  in  pursuance  of 
express  authority. 

That  Marsh,  Lee  &  Delavan,  being  a  majority  of  the 
trustee.-,  and  acting  within  their  trust,  have  j  ower  to  sell 
and  convey  the  land  in  fee  simple,  under  the  articles  of 
association,  we  think,  does  not  admit  of  a  doubt. 

It  is  also  contended  that  the  trustees  could  not  con- 
vey the  title  to  the  land  by  attorney.  Whether  trustees 
can  convey  lands  by  an  attorney,  without  express  author- 
ity to  do  so  in  the  instrument  creating  the  trust,  depends 
upon  the  nature  of  the  trust,  and  the  instrument  by 
which  the  trust  is  created.  In  the  case  at  bar,  the  ques- 
tion is  disposed  of  by  the  articles  of  association,  by 
which  the  trust  is  created.  The  sixth  subdivision  of  the 
third  general  article,  in  speaking  of  the  power  vested 
in  the  trustees,  or  a  majority  of  them,  provides,  "  To 
employ,  substitute  and  authorize  such  attorney  or  attor- 
neys, agents  and  clerks,  as  may  be  necessary  in  executing 
the  object  of  their  agreement,  and  in  the  care  and 
management  of  said  property,  and  to  allow  them  such 
compensation  for  their  services  as  they  may  think  fit." 
What  are  "  the  objects  of  the  agreement  to  be  carried  out 
and  necessary  to  be  executed,"  to  do  which  an  attorney  or 
attorneys  might  be  appointed  by  the  trustees,  or  a  majority 
of  them  ?  Clearly,  among  many  other  things,  to  sell  and 
execute  deeds  conveying  the  title  to  the  lands  to  the 
purchasers  thereof.  It  will  not  be  contended,  seriously, 
that  the  parties,  owners  of  these  lands,  could  not,  by  their 
solemn  agreement,  with  a  view  to  promote  their  interests, 
empower  their  trustees,  or  a  majority  of  them,  to  appoint 
an  attorney  to  act  for  them  in  receiving  and  imparting 
title.  That  such  an  arrangement  would  be  calculated  to 
facilitate  the  business  and  promote  the  interests  of  the 
company  is  evident.  The  bill  of  exceptions  shows  that 
Marsh,  Lee  &  Delavan,  as  trustees  for  the  company,  by 
their  power  of  attorney  dated  the  6th  day  of  June,  1844, 
did  authorize  David  W.  Kilbourne  to  act  for  them  in  the 


BURLINGTON,  MAY,  1S49.  175 

Barney  v.  Chittenden. 

purchasing  and  selling  of  lands  on  tlie  half-breed  tract, 
and  to  receive  and  impart  the  title,  in  such  manner,  and 
as  fully  as  they  could  themselves  by  virtue  of  the  articles 
of  association,  for  the  company. 

The  ruling  of  the  court  below,  as  to  this  point,  is  in 
accordance  with  the  principles  of  law.  We  know  of  no 
case  where  it  has  been  decided  that  the  parties  owning 
lands,  whether  as  individuals,  or  persons  associated  by 
agreement  in  company  form,  may  not  authorize  and 
empower  in  express  terms  others  to  act  for  them  in  con- 
ducting their  business,  or  to  buy,  sell,  receive  and  confer 
the  title  to  lands.  The  cases  cited  by  the  counsel  for  the 
defendant,  and  ably  urged,  as  applicable  to  this  case,  do 
not  affect  those  of  express  power  given  by  those  having  the 
legal  right  to  impart  it.  The  case  of  Pearson  v.  Jameson^ 
1  McLeans,  187,  is  the  case  of  an  executor  who  was 
empowered  to  sell  an  estate  "  in  the  best  mode  in  his 
judgment  for  the  interest  of  the  estate."  It  was  decided 
that  it  was  "  a  personal  trust,"  his  judgment  was  relied 
on  for  the  best  interests  of  the  estate.  He  could  not  dele- 
gate said  trust  to  another.  Besides,  the  language  of  the 
trust,  as  created,  could  not  be  construed  as  authorizing 
him  to  delegate  his  power  to  another,  as  in  the  case  at 
bar ;  such  also  is  the  case  in  4  John's  Ch.,  367.  It  is 
there  decided  that  an  executor  could  not  delegate  the 
power  of  selling  to  an  attorney.  The  principles  of  law 
recognized  in  these  cases  are  indisputable,  but  cannot  be 
applied  to  the  case  at  bar.  The  power  to  sell  and  convey 
the  lands  of  the  company,  as  well  as  authority  to  appoint 
an  attorney  to  act  for  them  in  carrying  out  that  power,  is 
expressly  given  to  the  trustees,  or  a  majority  of  them. 
Marsh,  Lee  &  Delavan,  a  majority  (?f  the  trustees,  confer 
upon  Kilbourne,  the  attorney,  authority  to  sell  and  convey 
the  title  to  the  land.  The  object  of  the  association  being 
legitimate  and  proper,  they  who  were  entrusted,  as  parties, 
had  a  right  by  agreement  to  ordain  the  terms  and  mode 
by  which  they  would  manage  and  dispose  of  their  interests 
in  the  property.     Having  done  so  in  plain  and  express 


176  SUPREME  COURT  CASES, 

Barney  v.  Chittenden. 

terms,  it  is  the  dut}''  of  tlie  court  to  give  to  the  convey- 
ance the  sanction  of  law. 

Construing'  the  articles  of  association  thus,  we  think 
that  a  majority  of  the  trustees  have  plenary  power  to 
make  contracts  for  the  purchase  and  sale  of  the  lands  of 
the  company,  and  to  act  by  attorney  therein.  The 
numerous  cases  cited  by  the  counsel  of  the  plaintifi  in 
error,  on  the  subject  of  tlie  power  of  trustees,  not 
expressly  given,  are  not  applicable  to  the  case  at  bar. 

It  is  also  contended  that  the  district  court  erred  by 
admitting  in  evidence  the  will  ol  John  McKean,  deceased. 
That  it  was  inadmissible,  because  the  probate  thereof  was 
made  by  only  one  subscribing  witness,  and  no  consent  or 
satisfactory  evidence  shown  to  have  been  presented  to  the 
court  of  probate  of  its  execution. 

The  statute  of  the  state  on  the  subject  of  wills.  Rev. 
Stat.,  p.  668,  §  13,  provides,  that  ''when  it  shall  aj^pear 
to  the  judge  of  probate,  by  the  consent  in  writing  of  the 
heirs  at  law,  or  hy  other  satisfactory  evidence,  that  no 
person  interested  in  the  estate  intends  to  object  to  the 
probate  of  the  will,  he  may,  on  his  discretion,  grant 
probate  thereo.^  upon  the  testimony  of  one  of  the  sub- 
scribing witnesses,  without  requiring  the  attendance  of  all 
of  them,  although  the  others  should  be  within  reach  of  the 
process  of  the  court." 

The  will  was  made  by  John  McKean,  the  deceased,  in 
the  presence  of  three  subscribing  witnesses.  It  bears 
date  February  23,  1847.  Probate  thereof  was  made 
before  Philip  Veile,  judge  of  probate  for  Lee  county,  on 
the  2d  April,  1847,  by  the  testimony  of  Peter  Young,  one 
of  the  subscribing  witnesses.  The  probate  judge  sets  out 
in  his  record,  that  on  the  day  last  named,  Peter  Young, 
one  of  the  subscribing  witnesses  to  the  will  of  John 
McKean,  late  of  said  county,  deceased,  appeared  in  the 
court  of  probate  in  said  county,  and  after  having  been  duly 
sworn,  declared  on  oath  that  he  was  present  at  the  execu- 
tion of  said  will,  and  saw  the  said  John  McKean  sub- 
scribing his   name  to  the  above  instrument,  and  declare 


BURLINGTON,  MAY,  1849.  177 

Barney  v.  Chittenden. 

that  the  same  was  his  last  will  and  testament ;  and  that 
he,  together  with  Justin  Millard  and  James  Hill,  the 
other  witness,  subscribed  their  names  as  witnesses  in 
the, presence  of  the  testator,  at  his  request,  and  in  the 
presence  of  each  other;  and  that  said  John  McKean,  at 
the  time  of  executing  said  will,  was  of  full  age  and  sound 
mind." 

The  statute  cited  above  vests  the  probate  judge  with 
discretionary  power  to  grant  the  probate  upon  the  testi- 
mony of  one  of  the  subscribing  witnesses,  if  he  be  satis- 
fied, by  consent  of  the  heirs  or  other  evidence,  that  no 
one  interested  in  the  estate  intends  to  object  to  the  pro- 
bate thereof.  It  is  urged  that  the  probate  court  did  not 
acquire  jurisdiction  of  the  case  under  the  will  of  John 
McKean,  the  deceased,  so  as  to  grant  the  letters  testa- 
mentary to  Chittenden  and  Telford,  for  the  reason  that 
the  probate  of  the  will,  as  made  by  the  judge,  was  not  in 
accordance  with  the  requirement  of  the  statute  on  wills. 
This  objection  cannot  jjrevail  here.  So  far  as  administra- 
tion is  concerned,  both  of  real  and  personal  estate,  the 
probate  courts  have,  by  our  statute,  the  complete  original 
jurisdiction.  Though  this  court  may  be  held,  as  an  infe- 
rior tribunal,  of  limited  power,  being  by  the  statute  con- 
fined in  its  jurisdiction  to  the  cognizance  and  judicial 
adjustment  of  the  estates  of  decedents ;  nevertheless, 
its  judgments,  orders  and  decrees,  made  within  the  scope 
of  its  specific  powers,  as  prescribed  by  the  statute,  are  to 
be  regarded  as  conclusive  against  collateral  attack,  when 
jm-isdiction  has  attached,  as  to  the  parties  and  the  subject 
matter. 

The  ]3robate  of  the  will  by  the  judge,  and  the  granting 
of  the  letters  testamentary  to  Chittenden  and  Telford,  are 
judicial  acts  within  the  proper  sphere  of  the  com't  in  the 
exercise  of  its  jurisdiction,  and  cannot  be  impeached  for 
irregularity  such  as  is  here  alleged.  The  court  must  be 
presumed  to  have  acted,  in  ordering  the  probate  of  the 
will,  with  a  sound  discretion,  in  compliance  with  the  stat- 
ute.    In  other  states  the  courts  have  treated  the  orders 


178  SUPREME  COURT  CASES, 

Barney  v.  Chittenden. 

and  decrees  of  these  courts  not  only  as  prima  fade,  but  as 
absolutely  conclusive,  when  acting  within  the  limits  of 
their  jurisdictional  power.  In  Pennsylvania,  the  decrees 
of  this  court,  on  settlement  of  an  account,  &c.,  are  placed 
as  far  above  impeachment  as  the  adjudications  of  any 
other  courts.  McFadden  v.  Geddis,  17  Serg't  &  Rawle, 
333  ;  App  V.  Driesback,  2  Rawle,  287  ;  Wimmer's  appeal^ 
1  Wheaton,  65.  The  trust  and  duty  appointed  by  the 
will,  confirmed  upon  proof,  and  adjudged  sufficient  by  the 
court  in  granting  the  letters  testamentary  to  the  plaintiffs, 
furnishes  conclusive  evidence  of  the  fact  to  all  persons. 
1  Con.  U.  S.,  7.  In  Louisiana  'Hhe  sentence  of  a  court 
of  probate  ordering  the  execution  of  a  will  is  prima  facie 
evidence  that  it  was  duly  proved.  Donaldson  v.  Wititer, 
1  Mart.,  137,  144.  And  also,  that  when  probate  transac- 
tions are  put  in  question,  the  appointment  of  the  executor 
or  administrator  by  the  court  of  probate  cannot  be  ques- 
tioned for  error,  even  if  letters  were  granted  to  the  wrong 
person,  &c.  Such  defects  can  only  be  set  right  upon 
appeal.  McComh  v.  Dunbar,  1  Mart.,  18,  21.  This  court, 
particularly  as  constituted  and  regulated  by  the  statute  of 
this  state,  is  presumed  to  have  acted  correctly  in  granting 
the  letters  testamentary  upon  the  probate  of  the  will. 
The  30th  section  of  the  act  on  wills,  &c.  (see  Rev.  Stat., 
Iowa,  p.  672)  provides,  "  That  the  probate  of  a  will,  divid- 
ing real  estate,  shall  be  conclusive  as  to  the  due  execution 
of  the  will,  in  like  manner  as  it  is  a  will  of  personal 
estate."  We  therefore  consider  the  probate  of  the  will, 
as  set  forth  by  the  record  of  the  probate  court,  sufficient 
foi  the  purposes  of  the  plaintiffs  in  this  case,  establishing 
the  execution  of  the  will,  and  authorizing  the  plaintiffs  to 
act  as  the  executors  under  it.  Tlie  court  possessing  entire 
and  general  jurisdiction  of  probate  matters  under  the 
statute,  and  being  competent  to  exercise  full  power  in 
adjudicating  them,  the  presumption  is  in  favor  of  the 
correctness  of  its  procedure.  Brown  v.  Wood,  17  Mass., 
72;  2  Greenl.  on  Ev.,  §  339. 

The  fourth  assignment  of  error  is,  that  the  plaintiffs  could 


BURLINGTON,  MAY,  1849.  179 

Coonrod  v.  Benson. 

not  sustain  their  action,  not  having  shown  that  they  exe- 
cuted bonds,  as  required  by  law. 

What  has  been  already  said  upon  the  previous  assign- 
ment is  applicable  to  this.  Upon  the  production  of  letters 
testamentary,  authorized  by  the  proper  officer  in  due  form 
df  law,  they  were  entitled  to  legal  recognition  in  court, 
as  the  executors  of  the  last  will  and  testament  of  John 
McKean,  to  maintain  this  action  in  order  to  the  establish- 
ment of  the  rights  and  interests  of  the  estate. 

Judgment  affirmed. 
Geo.  C.  Diccon,  for  plaintiff  in  error. 
J.  C.  ITallf  for  defendant. 


COONROD  V.  BENSON. 

The  neglect  of  the  court  to  render  a  judgment  non  obstante  veredicto^  on  the 
ground  of  an  insufficient  plea,  cannot  he  urged  as  error  unless  a  motion 
was  made  for  such  a  judgment,  and  exception  taken  to  the  ruling  of  the 
court. 

Error  to  Louisa  District  Court. 

Opinion  hy  Kinney,  J.  Coonrod  sued  Benson  in  as- 
sumpsit, and  declared  upon  a  note  given  on  the  24th  day 
of  February,  1842,  calling  for  |141. 

The  defendant  pleaded  the  general  issue,  gave  notice  of 
the  failure  of  consideration,  and  pleaded  that  the  right  of 
action  did  not  accrue  to  the  plaintiff  within  six  years 
before  the  commencement  of  the  suit.  The  plaintiff  re- 
plied in  short,  by  consent,  to  the  plea  of  the  statute  of 
limitations,  and  the  cause  was  submitted  to  the  court 
upon  the  issue  made  by  the  plea  of  the  statute  and  the 


180  SUPREME  COURT  CASES, 

Coonrod  v.  Benson. 

plaintiff's  replication.  The  court  sustained  the  plea,  and 
entered  judgment  for  costs  against  the  plaintiff,  to  which 
he  excepted,  and  assigns  the  decision  for  error. 

The  issue  made  by  the  pleadings  and  tried  by  the  court 
was  simply  this — Did  the  right  of  action  accrue  within  six 
years  prior  to  the  commencement  of  the  suit  ?  The  defend- 
ant says  in  his  plea  that  it  did  not ;  the  plaintiff,  in  his 
replication,  that  it  did ;  and  here  the  parties  were  at  issue. 
The  court,  upon  this  issue,  found  for  the  defendant,  that 
the  right  of  action  did  not  accrue  within  six  years ;  and 
this  was  the  fact,  as  the  note  was  given  more  than  six 
years  prior  to  the  commencement  of  the  suit. 

The  pleader  probably  supposed,  when  he  filed  his  repli- 
cation, that  it  would  have  the  effect  of  a  demurrer,  and 
would  test  the  question  of  law  tendered  by  the  plea ;  but 
such  is  not  the  effect  of  a  replication. 

Although  the  plea,  according  to  the  repeated  decisions 
of  this  court,  did  not,  if  true,  constitute  any  defence  to 
the  action,  yet  the  court  could  not  have  decided  differently 
under  the  state  of  the  pleadings.  The  issue  was  merely 
one  of  fact,  and  not  of  law.  The  court,  by  consent,  acted 
in  the  capacity  of  jury  in  determining  the  fact,  and  found 
correctly.  But  it  is  now  contended  by  the  plaintiff  in 
error,  that  as  the  judge  was  substituted  for  the  jury,  the 
plaintiff  having  a  good  cause  of  action,  the  defendant 
having  put  in  a  bad  plea,  and  the  decision  being  in  favor 
of  that  plea,  the  court  should  have  rendered  a  judgment 
for  the  plaintiff  non  obstante  veredicto.  If  the  case  had 
been  submitted  to  the  jury  as  made  by  the  pleadings, 
and  the  jury  had  found  for  the  defendant,  upon  motion, 
the  court  could  have  rendered  a  judgment  in  favor  of 
the  plaintiff  non  obstante  veredicto,  and  a  refusal  to 
enter  such  judgment  would  have  been  good  cause  of 
reversal. 

But  it  is  urged,  that  as  the  judge  acted  in  the  place  of 
the  jury,  the  same  doctrine  should  obtain.  This  is  true ; 
but  if  the  plaintiff  desired  a  judgment  non  obstante  vere- 
dicto, he  should  have  made  a  motion  to  that  effect,  and 


BURLINGTOi^,  MAY,  1849.  181 

Forsyth  v.  Ripley. 

if  it  had  been  overruled  and  excej^ted  to,  he  could  then 
have  had  his  remedy  by  writ  of  error. 

But  the  bill  of  exceptions  taken  in  this  case  was  to  the 
decision  of  the  court  in  sustaining  the  plea.  We  cannot 
change  its  character,  nor  apply  it  to  anything  except  to 
the  decision  which  it  seeks  to  correct,  and  which  formed 
the  basis  for  the  exceptions. 

The  plaintiflP,  therefore,  in  this  case  should  have  demurred 
in  order  to  avoid  the  plea  of  the  statute  of  limitations. 
As  he  did  not  demm*,  and  as  the  plea  was  no  defence  to 
the  action  when  the  court  found  the  facts  in  favor  of  the 
defendant,  he  ought  to  have  moved  for  a  judgment  "  non 
obstante  veredicto. ^^  As  the  plaintiff,  therefore,  has  not  put 
his  case  in  a  position  to  claim  the  aid  of  this  court,  and 
as  there  was  no  error  in  the  decision,  the  judgment  must 
be  affii'med. 

Judgment  affirmed. 

Chimes  ^  Starr,  for  plaintiff  in  error. 

2>.  Rarer ^  for  defendant. 


FOESYTH  &  CO.  v.  RIPLEY. 

The  statute  of  limitations,  approved  February  15,  1843,  cannot  be  pleaded  in 
bar  of  an  action  of  debt,  covenant,  &c.,  within  six  years  after  the  act  com- 
menced running. 

The  decision  in  Norris  v.  Slaughter,  1  G.  Greene,  338.  approved. 

The  limitation  act  of  1839,  having  been  unconditionally  repealed  by  the  act 
of  1843,  without  a  saving  clause,  the  time  which  an  indebtedness  had  run 
under  the  old  act  cannot  be  included  as  limitation  time  under  the  new 
act. 

As  the  limitation  act  of  1839  had  not  been  in  force  the  requisite  period  of 
six  years,  nor  connected  with  the  Michigan  act  of  1820,  it  cannot  be  pleaded 
as  a  bar  to  an  action  of  debt. 


182  SUPREME  COURT  CASES, 

Forsyth  v.  Ripley. 

A  repealed  statute  of  limitations,  under  which  an  action  had  been  barred, 

should  be  speciall.v  pleaded. 
At  common  law,  payment  from  lapse  of  time  will  not  be  presumed,  unless 

the  debt  has  run  twenty  years,  and  the  debtor  pleads  or  alleges  payment. 
No  statute  should  have  a  retrospect  beyond  the  period  of  its  commencement, 

nor  be  so  construed  as  to  divest  acquired  rights. 

Error  to  Des  Moines  District  Court. 

Opinion  by  Greene,  J.  This  was  an  action  of  debt  on 
n  note  under  seal,  executed  Marcli  8, 1834,  by  Jolm  Ripley, 
])uyable  three  months  after  date  to  John  A.  Forsyth  &  Co. 
The  defendant  pleaded  the  statute  of  limitations  ;  to  this 
plea  the  plaintiffs  demurred,  and  the  demurrer  was  over- 
ruled. It  is  urged  that  the  court  erred  in  overruling  the 
demurrer,  on  the  ground  that  no  statute  of  limitations 
had  been  pleaded,  which  could  operate  as  a  bar  to  the 
action.  By  former  adjudications  of  this  court,  it  has  been 
repeatedly  decided  that  the  statute  of  limitations,  approved 
February  15,  1843,  (Rev.  Stat.,  384,)  cannot  be  success- 
fully pleaded  in  an  action  of  debt,  covenant,  &c.,  within 
six  years  after  the  act  commenced  running.  As  the  act 
acquired  no  vitality  till  July  4, 1843,  (Rev.  Stat.,  377,  §  1,) 
and  as  it  repealed,  without  saving  clause  or  connection, 
the  limitation  law  then  in  force,  any  such  action  com- 
menced prior  to  the  4th  July,  1849,  cannot  be  barred  under 
that  statute.  The  present  action  was  commenced  Septem- 
l)cr  9,  1848,  and  is  within  the  limitation  period.  This 
principle  was  first  recognized  by  this  com-t  in  Norris  v. 
Slaughter,  1  G.  Greene,  338. 

The  "  several  legal  inferences  "  in  Norris  v.  Slaughter, 
we  do  not  regard  as  mere  dicta,  as  is  claimed  by  counsel, 
but  as  approved  rules  and  established  principles,  which 
governed  the  decision  in  that  case,  and  which  we  must 
continue  to  recognize  as  sound  principles  of  law.  Having 
been  so  repeatedly  guided  by  those  rules  in  analogous 
decisions,  a  review  of  the  reasons  which  led  us  to  their 
adoption  can  hardly  be  deemed  necessary.  With  what- 
ever favor  courts  may  contemplate  such  an  act,  in  extend- 
ing peace  and  repose  to  the  negligent  debtor,  we  cannot, 


1 


BURLINGTON,  MAY,  1849.  183 

Forsyth  v.  Ripley. 

by  implication,  divest  the  rights  of  a  creditor,  by  giving 
to  a  legislative  enactment  a  retrospective  operation. 

As  the  act  for  the  limitation  of  actions,  approved  January 
25,  1839,  was  unconditionally  repealed  by  the  present  law, 
without  reservation,  connection  or  saving  clause,  the  time 
which  the  indebtedness  had  run  under  the  old  law  could 
not,  with  a  proper  regard  to  legal  construction  or  legis- 
lative intention,  be  included  as  limitation  time  with  the 
law  now  in  force.  And  as  the  act  of  1839  had  not  been  in 
force  the  requisite  period  of  six  years,  nor  connected  with 
the  Michigan  act  of  1820,  it  could  not,  even  if  pleaded, 
operate  as  a  bar  to  tlie  present  action.  Nor  could  the 
Michigan  act  of  1820  be  successfully  pleaded.  That  act, 
if  applicable  to  an  action  of  debt  on  a  writing  obligatory, 
did  not  commence  to  run  on  the  present  instrument  until 
June  8,  1834,  and  in  less  than  five  years  was  superseded 
by  the  limitation  law  of  1839,  which  was  also  enacted 
without  connection  or  continuation  with  the  prior  statute. 

But  had  the  indebtedness  run  a  sufficient  time  under 
either  of  the  old  statutes  to  bar  the  action,  the  repealed 
law  relied  upon  should  have  been  specially  pleaded;  other- 
wise the  plea  of  limitation  will  be  considered  as  applying 
only  to  the  law  in  force.  Under  this  rule,  which  we 
regard  as  salutary,  it  is  not  necessary  to  decide  whether 
the  present  action  is  comprehended  within  the  objects  of 
limitation  designated  by  the  Michigan  act;  for  neither 
that,  nor  the  n  >t  of  1839,  can  be  appropriately  urged,  as 
applicable  to  the  present  proceeding. 

It  is  contended  by  counsel  for  the  defendant  in  error, 
that  the  court  below  properly  overruled  the  demurrer,  be- 
cause payment  might  be  presumed  at  common  law,  from 
the  lapse  of  time.  This  position,  for  two  conclusive  reasons, 
cannot  prevail.  1.  The  lapse  of  time  after  the  cause  of 
action  accrued  is  not  sufficient  to  justify  such  a  presump- 
tion in  law.  2.  A  party  can  only  avail  himself  of  this  pre- 
sumption under  a  plea  or  allegation  of  payment.  Cowen 
&  Hill's  Notes,  316,  350,  351  ;  Tibbs  v.  Clark,  5  Monroe, 
526.     And  even  where  twenty  years  have  elapsed,  the  pre- 


184  SUPREME  COURT  CASES, 


Wile  &  Fear  v.  Mutheraon. 


sumption  of  payment  is  not  absolute.  Such  a  lapse  of 
time  after  the  right  of  action  accrues,  amounts  only  to  a 
circumstance  on  which  to  found  the  j)resumption  of  pay- 
ment, and  is  not  in  itself  a  legal  bar  to  the  action.  Jack' 
son  V.  Pierce,  10  John.,  417  ;  Bailey  v.  Jackson,  16  John., 
210;  McDowelN.  Charles,  6  John.  Ch.  R.,  132. 

In  deciding  Norris  v.  Slaughter  and  the  present  case 
on  the  statute  of  limitations,  we  have  been  mainly  guided 
l)y  the  wholesome  and  familiar  rule  of  law,  that  no  statute 
sliould  have  a  retrospect  beyond  the  period  of  its  com- 
mencement, and  should  never  be  so  construed  as  to 
divest  acquired  rights.  Dash  v.  Van  Kleeck,  7  John., 
477  ;  Sayre  v.  Wisner,  8  Wend.,  6G1  ;  Fairbanks  v.  Wood, 
17  id.,  329;  Miller  v.  Whitaker,  5  Hill,  408;  Calkins  v. 
Calkins,  3  Barbom-,  306. 

Judo-ment  reversed. 


Henry  W,  Starr,  for  plaintiff  in  error. 
D,  Rorer^  for  defendant. 


WILE  &  FEAR  V.  MATHERSON. 

Where  a  statute  of  limitations  is  pleaded,  which  cannot  operate  as  a  bar  to 
the  action,  and  a  replication  ia  filed,  that  one  of  the  joint  debtors  had 
promised  payment  within  six  years,  to  which  replication  defendant  de- 
murred ;  it  was  held,  that  the  demurrer  related  back  to  the  first  mistake 
in  pleading,  and  that  plaintiff  was  entitled  to  judgment  on  the  demurrer. 

Error  to  Des  Moines  District  Court. 

Opinion  by  Kinney,  J.  This  was  an  action  brought  by 
the  defendant  in  error  against  the  plaintiff  in  error,  upon 
the  record  of  a  judgment  from  the  supreme  court  of  Cin- 
cinnati. The  defendants  pleaded,  fii-st,  nul  tiel  record; 
and  second,  the  statute  of  limitation. 


BURLINGTON,  MAY,  1849.  185 

Wile  &  Fear  v.  Matherson. 

The  plaintiff  replied  in  short  to  the  first  plea ;  and  as 
to  the  second,  sets  up  a  promise  of  payment  on  the  part 
of  Fear,  one  of  the  defendants,  within  six  years  prior  to 
the  commencement  of  the  suit.  To  the  second  replication 
as  to  the  promise  of  payment,  the  defendants  demurred. 
The  demurrer  was  overruled  and  the  defendants  required 
to  rejoin  to  the  replication.  They  then  withdrew  the  plea 
of  nul  tiel  record,  and  having  failed  to  rejoin  to  the  plain- 
tifi''s  replication  to  the  second  plea,  a  judgment  was  ren- 
dered against  them;  to  reverse  which,  they  sued  out  a 
writ  of  error,  and  assign  the  decision  of  the  court,  over- 
ruling their  demui-rer  for  error. 

It  was  contended  at  some  length  in  the  argument,  that 
a  promise  of  one  partner  or  joint  debtor  would  not  take 
the  case  out  of  the  statute  of  limitations  as  to  the  co- 
partner or  joint  debtor,  and  hence  that  the  demurrer  to 
the  replication  to  the  plea  of  the  statute  of  limitations, 
setting  up  a  promise  of  one  of  the  defendants,  was  im- 
properly overruled. 

The  plea  in  this  case  was  of  no  avail,  according  to  the 
decisions  of  this  court  in  the  case  of  Norris  v.  Slaughter, 
1  G.  Greene,  338;  and  Forsyth  v.  Ripley* 

When  the,  statute  of  limitations  was  set  up  by  the  plea 
as  a  defence,  there  was  no  such  statute  in  force,  and  con- 
sequently could  not  be  pleaded  as  a  defence  to  the  action. 
Various  statutes  of  limitations  had  existed,  but  as  the  time 
l)rescribed  for  the  limitation  of  actions  had  never  run 
under  any  one  of  them,  in  consequence  of  their  appeal, 
without  a  saving  clause  as  to  pre-existing  contracts  ;  and 
as  the  repealing  statutes  were  not  retroactive  by  express 
enactment,  it  was  decided  that  these  statutes  could  not 
apply  to  contracts  which  had  run  a  part  of  the  time  under 
them  as  prior  laws.  Hence  the  plea  in  this  case  is  bad ; 
so  also  was  the  replication  of  the  plaintiff,  setting  up  a 
promise  to  pay  by  one  of  the  defendants. 

The  defendants  were  legally  bound  to  pay  the  debt  with- 

*Ante,  181. 

Vol.  II.  13 


186  SUPREME  COURT  CASES, 

Lewis  V.  Sutliff. 

out  sucli  subsequent  promise.  As  the  debt  was  not  barred, 
a  promise  to  pay  was  unnecessary;  as  without  it,  the  plain- 
tiff was  entitled  to  recover.  The  defendants,  therefore, 
with  a  bad  plea,  demurred  to  a  bad  replication.  The  de- 
murrer looks  back  to  the  plea,  and  if  the  plea  was  bad, 
they  are  not  in  a  situation  to  object  to  a  bad  replication. 
The  first  fault  in  pleading  having  originated  with  them, 
they  were  not  entitled  to  judgment  upon  the  demurrer;  as 
a  bad  replication  was  good  enough  for  a  bad  plea. 

The  plea  being  bad,  and  the  demurrer  relating  back  to 
the  first  mistake  in  pleading,  the  plaintiff  was  entitled  to 
a  judgment,  as  the  first  error  was  committed  by  the  defend- 
ants. Barruss  v.  Maden,  2  John.,  145  ;  Bennett  v.  Irwin^ 
3  ih.^  363;  Allen  v.  Crawford^  7  Cow.,  46;  United  States 
V.  Arthur  et  al.^  5  Cranch,  257;  8  East.,  442;  11  Johnson, 
482,  583,  587.  As  the  plea,  therefore,  in  this  case  was  bad, 
we  think  the  court  were  right  in  rendering  a  judgment  in 
favor  of  the  plaintiff;  and  although  that  court  may  assign 
a  wrong  reason  for  the  judgment,  yet  if  the  judgment  is 
right,  this  court  will  not  reverse. 

In  this  view  of  the  case,  the  question  whether  the  pro- 
mise of  one  joint  debtor  or  joint  partner  will  take  the 
case  out  of  the  statute  of  limitations,  as  to  the  co-debtor 
or  partner,  cannot  well  be  raised,  and  therefore  cannot  be 
decided. 

Judgment  affirmed. 

J.  C.  Hall  and  D,  Borer,  for  plaintiffs  in  error. 

Grimes  and  Starr,  for  defendant. 


>  *  *  *  < 


LEWIS  V.  SUTLIFF. 

Tlie  second  section  of  the  attachment  act,  which  authorizes  an  issue  and  jniy 

trial  of  the  facts  upon  which  tlie  attacliment  issued,  is  not  repealed  by 
tl;e  nmciidatorv  act  of  1S4G. 


BURLINGTON,  MAY,  1849.  187 

Lewis  V.  Sutliff. 

The  certificate  of  a  judge,  that  the  transcript  of  a  record  is  attested  in  due 

form,  is  authentic  evidence  of  its  correctness. 
Where  tlie  certificate  of  a  judge  is  not  dated,  but  is  preceded  and  followed 

bj'  certificates  of  the  clerk,  the  first  dated  oa  the  18th,  and  the  other  on 

the  31st  of  Julj",  the  defect  is  cured. 


Error  to  Lee  District  Court. 

Opmion  hy  Greene,  J.  Levi  SutlifF  instituted  an  action 
of  debt,  on  a  judgment  record,  against  Garry  Lewis. 
After  commencing  suit,  the  plaintiif  sued  out  a  writ  of 
attachment,  and  had  it  levied  upon  the  real  and  personal 
property  of  the  defendant.  The  defendant  joined  issue 
upon  the  facts  and  allegations  contained  in  the  affidavit 
on  which  the  attachment  issued,  and  demanded  a  trial  of 
that  issue  by  a  jury,  but  the  court  refused  the  trial.  To 
this  ruling  of  the  court,  the  defendant  took  exception. 
On  the  trial  of  the  cause,  the  plaintiff  offered  in  evidence 
to  the  jury  a  certified  copy  of  a  judgment  rendered  in  the 
court  of  common  pleas,  for  the  county  of  Trumbull  and 
state  of  Ohio,  in  his  favor  against  the  defendant.  The 
admission  of  this  record  was  objected  to,  on  the  ground 
of  defective  authentication;  but  the  objection  was  over- 
ruled and  the  evidence  admitted.  Upon  this  evidence, 
the  plaintiff  obtained  a  verdict  and  judgment,  with  an 
order  that  the  property  attached  be  sold  in  satisfaction. 

The  decisions  of  the  court  in  refusing  a  trial  of  the 
attachment  issue,  and  in  admitting  the  record  as  evi- 
dence, are  assigned  as  error : 

1.  The  second  section  of  the  act,  allowing  and  regulat- 
ing writs  of  attachment,  provides  that  upon  the  return  of 
any  writ  of  attachment,  "  the  defendant  may  join  issue 
upon  the  facts  and  allegations  set  forth  in  the  affidavit,  on 
which  the  attachment  is  sued  out ;  and  thereupon  said  issue 
shall  be  tried  by  a  jury,"  in  like  manner,  as  any  other 
issue  of  fact  is  tried.  Rev.  Stat.,  78.  In  January  184G,  the 
first  section  of  the  statute  regulating  writs  of  attachment, 
was  amended,  by  substituting  a  different  class  of  requi- 
sites, to  be  alleged  in  the  affidavit  as  preliminary  to  the 


188  SUPREME  COURT  CASES, 

Lewis  V.  Sutliff. 

issuing  of  tlie  writ.  But  the  substitution  of  this  amen- 
datory act  is  limited  to  the  first  section  of  the  law  first 
referred  to,  and  in  no  way  abrogates  or  contravenes  the 
second  section  which  authorizes  an  issue  and  jury  trial.  The 
law  of  1846  repeals  riothing  in  the  act  to  which  it  is  amen- 
datory but  the  first  and  second  class  of  requisites,  which 
are  designated  in  the  first  section,  and  does  not  even  by 
implication  militate  against  the  right  so  wisely  and  justly 
extended  to  the  defendant  in  the  attachment  of  having  the 
reasons  for  issuing  the  writ  tested  by  investigation.  An 
abuse  of  this  stringent  and  oppressive  process  loudly  de- 
manded legislative  interposition,  when  the  second  section 
was  incorporated  as  a  protection  to  debtors,  against  the  per- 
secuting avidity  of  creditors ;  and  so  far  from  impairing  the 
shield  of  protection  thus  extended,  the  law  of  1846  renders 
it  more  ample,  by  adding  exemplary  damages  in  an  action 
on  the  attachment  bond.  We  cannot,  then,  in  any  par- 
ticular, approve  the  position  assumed  by  counsel,  that  this 
act  curtails  the  rights  of  a  defendant  in  attachment  pro- 
ceedings ;  it  rather  extends  to  him  additional  security. 

Entertaining,  no  doubt,  that  the  right  of  the  defendant 
to  a  trial  of  the  attachment  issue  is  still  authorized  by 
statute,  the  decision  of  the  court  refusing  such  trial,  and 
ordering  the  sale  of  the  property  attached,  to  satisfy  the 
judgment,  is  reversed. 

2.  The  objections  urged  to  the  authentication  of  the 
record  which  was  admitted  in  evidence,  deserves  a  brief 
notice.     The  certificates  attached  are  as  follows : 

"The  state  of  Ohio,) 
Trumbull  County,  j  ^^• 

"  I,  Warren  Young,  clerk  of  the  court  of  com- 
mon pleas  within  and  for  said  county  of  Trumbull  and 
state  of  Ohio,  certify  that  the  foregoing  is  truly  copied 
from  the  record  of  the  proceedings  of  said  court  in  the 
cause  aforesaid." 

To  this  are  appended  the  usual  test,  the  date,  seal  and 
signature  of  the  clerk  in  the  usual  form.  The  certificate 
of  the  clerk  is  followed  by  that  of  the  judge,  in  these  words: 


BURLINGTON,  MAY,  1849.  189 

Lewis  i:  Sutliflf. 

"  I,  B.  F.  Wade,  president  judge  of  the  third  judicial 
circuit  of  the  court  of  common  pleas,  of  the  state  of  Ohio, 
in  which  said  circuit  said  county  of  Trumbull  is  included, 
certify  that  Warren  Young  is  clerk  of  said  court  and  that 
his  attestation  is  in  due  form,  of  law. 

B.  F.  Wade,  Fres.  Jnclger 

The  certificate  of  the  clerk  properly  authenticated,  and 
dated  July  31,  1848,  is  appended  to  show  that  Benjamin 
F.  Wade  was  presiding  judge  as  above,  and  that  the  sig- 
nature is  genuine.  But  this  certificate  is  a  superfluous 
appendage.  An  examination  of  the  various  objections 
which  counsel  have  ingeniously  urged  to  these  certificates, 
we  cannot  consider  essential.  The  first  certificate  of  the 
clerk  sufficiently  identifies  the  transcri|)t  to  be  a  true  copy 
of  the  record  in  the  case.  It  contains  all  the  averments 
which  are  usually  adjudged  material  in  such  an  authenti- 
cation, and  being  followed  by  the  certificate  of  the  pre- 
siding judge  that  the  attestation  is  in  due  form  of  law, 
the  record  is  sufficiently  authenticated  to  give  it  full  faith 
and  credit,  under  the  act  of  Congress  passed  May  26,  1790. 
As  decided  by  this  court  in  Young  v.  Thayer ,  1  G.  Greene, 
190,  the  certificate  of  a  judge  that  the  attestation  is  in  due 
form,  is  authentic  evidence  of  its  correctness.  In  the  pre- 
sent case,  the  certificate  of  the  judge  is  defective  in  omit- 
ting the  date,  but  that  defect  is  cured  by  the  certificates 
of  the  clerk  preceding  and  following  that  of  the  judge. 
One  is  dated  on  the  18tli,  and  the  other  on  the  31st  July, 
1848 ;  showing  that  the  intermediate  certificate  of  the 
judge  was  made  between  those  dates. 

The  judgment  of  the  district  com-t  rendered  pursuant 
to  the  verdict  is  affirmed ;  but  as  the  order  relative  to  the 
attachment  issue  was  erroneous,  the  defendant  in  error  is 
adjudged  to  pay  the  costs  of  this  court,  and  a  venire  de 
novo  is  ordered  to  determine  the  attachment  issue. 

D.  Rorer,  for  plaintiff  in  error. 

L.  R.  Reeves,  for  defendant. 


190  SUPREME  COURT  CASES, 


Huner  v.  Reeves. 


HUNER  V.  REEVES,  admr.,  &c. 

All  co-parties  to  a  judgment,  who  are  entitled  to  a  writ  of  error,  must  be 
joined  as  plaintiffs  in  tlie  writ;  and  if  eitlier  of  them  refuses  to  join,  still, 
his  name  may  be  used  by  giving  him  a  bond  to  indemnify  him  against 
damages  and  costs. 

Error  to  Lee  District  Court. 

Opinion  hy  Kinney,  J.  A  motion  is  made  in  this  case 
by  the  attorney  for  the  defendant  in  error,  to  dismiss  the 
writ  of  error,  for  the  I'eason  that  a  bond  was  not  given  by 
Huner  to  his  co-party  Bullard,  as  required  by  the  statute, 
when  co-plaintiifs  do  not  join  in  the  writ.  The  statute 
provides  :  "  That  any  one  of  two  or  more  persons  en- 
titled to  a  writ  of  error,  may  sue  out  a  writ  of  error  as  of 
course,  in  the  name  of  the  plaintiff  in  error.  Promded 
such  plaintiff  in  error  shall  have  first  filed  a  bond  with 
the  clerk  of  the  district  court,  where  the  judgment  or 
decree  was  rendered  in  such  sum  as  the  clerk  shall  re- 
quire, with  sufficient  sureties  to  indemnify  his  co-plaintiff, 
against  all  damages  and  costs,  on  account  of  suing  out 
such  writ  of  error."     Laws  of  1845,  p.  26,  §  2. 

Huner  and  Bullard  were  the  defendants  below.  Huner 
alone  feels  aggrieved  by  the  judgment,  and  sues  out  the 
writ  in  his  own  name.  This  he  could  not  do,  without 
joining  his  co-plaintiff,  and  if  he  had  refused  to  join,  he 
could  still  use  his  name  in  the  writ  of  error,  by  giving 
him  a  bond  to  indemnify  him  against  damages  and  costs 
in  compliance  with  the  statute. 

Giving  a  bond  to  co-plaintiffs  when  they  do  not  join 
in  the  writ  of  error,  is  made  by  the  statute  a  condition 
precedent  to  the  suing  out  of  the  writ,  an  imperative 
requirement  which  cannot  be  dispensed  with.  The  laws 
prescribing  the  manner  of  suing  out  a  writ  of  error  by  one 
party,  where  there  are  other  parties  who  do  not  join  in 
the  writ,  is  inflexible,  and  unless  pursued,  or  there  is  evi- 
dence of  a  waiver  of  the  bond,  this  court  will  not  take 


BURLINGTON,  MAY,  1849.  191 

Wright  V.  Phillips. 

jurisdiction  of  the  cause,  and  will  on  motion  dismiss  the 
writ. 

As  the  writ  was  sued  out  in  this  case  by  Huner,  with- 
out having  first  given  the  bond  and  joining  Bullard,  it 
must  be  dismissed.  The  bond  being  a  condition  prece- 
dent, we  cannot  now  permit  the  plaintiff  to  file  one,  nunc 
pro  tunc. 

Motion  granted. 

J.  C.  Hall,  for  plaintiff  in  error. 

Zr.  R.  Beeves,  for  defendant. 


->■•■»  •  <- 


WEIGHT  et  al.  v.  PHILLIPS. 

A  motion  for  a  nonsuit,  on  the  ground  of  plaintiff's  failure  to  appear,  will 
not  be  granted,  if  plaintiff  appears  before  the  motion  is  decided. 

Surveys  made  by  the  general  government  are  public,  and  within  the  judicial 
knowledge  of  courts. 

A  justice  of  the  peace  may  determine  what  townships  are  within  his  juris- 
diction ex  officio. 

A  substantial  compliance  with  the  statute,  conferring  and  regulating  the 
powers  of  justices  of  the  peace,  is  all  that  should  be  required. 

In  an  action  of  forcible  entry  and  detainer,  the  jurisdiction  of  a  justice  is 
co-extensive  with  the  county. 

A  verdict  defective  in  form  may  be  corrected  by  request  or  consent  of  the 
jurors  at  any  time  before  they  are  dismissed  and  the  verdict  is  recorded. 

In  a  case  taken  to  the  district  court  by  certiorari,  an  affirmance  or  a  new 
judgment  may  be  rendered  "  as  the  right  of  the  matter  may  appear." 

Error  to  Lee  District  Court. 

Opinion  by  Greene,  J.  An  action  of  forcible  entry 
and  detainer,  commenced  by  John  Phillips  against  Mitchell 
D.  "Wright  and  0.  Gentry.  It  appears  by  the  f  ran  script 
that  the  summons  was  served  upon  the  defendants  and 
made  leturnable  December  22,  1848,  at  10  o'clock,  a.m. 
At  the  time  ajipointed,  the  defendants  appeared  and  moved 


192  SUPREME  COURT  CASES, 


Wright  V.  Phillips. 


for  a  nonsuit,  on  the  ground  that  the  hour  of  trial  ^ 
passed.  This  motion  was  overruled,  and  thereupor,  r- 
defendants  moved  to  dismiss  tlie  suit,  alleging  for  cause 
that  the  complaint  did  not  show  that  the  premises  sued 
for  were  within  the  township  and  county  wdthin  which 
suit  was  brought.  This  motion  was  also  overruled.  The 
cause  was  then  submitted  to  a  jury,  who  returned  a  ver- 
dict in  these  words:  "  We  the  jury  find  for  the  plaintiff." 
This  verdict  was  signed  by  all  the  jurors ;  but  upon  sug- 
gestion of  the  justice,  it  was  put  in  the  form  provided  by 
statute,  and  then  signed  by  the  foreman. 

The  case  was  taken  to  the  district  court,  by  writ  of 
certiorari,  and  tried  upon  the  errors  assigned  to  the  pro- 
ceedings of  the  justice.  In  the  district  court  it  was  de- 
cided in  affirmance  of  the  judgment  of  the  justice,  that 
the  defendants  unlawfully  detained  the  premises  of  the 
plaintiff,  as  alleged  in  his  complaint,  and  that  restitution 
of  the  property  should  be  made.  The  judgment  contains 
a  particular  description  of  the  land,  in  directing  imme- 
diate possession  thereof,  to  be  restored  to  the  plaintiff.  To 
these  proceedings  various  objections  have  been  urged  in 
this  court : 

1.  It  is  alleged  that  the  court  below  erred  in  not 
reversing  the  judgment  of  the  justice  for  the  errors 
assigned  on  certiorari.  It  is  contended,  that  the  justice 
should  have  granted  a  nonsuit  on  the  application  of  the 
defendants.  Upon  this  point  we  are  informed  by  the  re- 
tm-ns  of  the  justice,  that  "  on  the  day  of  trial  after  the  hour 
of  eleven  o'clock,  the  defendants  appeared  and  asked  for 
a  nonsuit,  which  motion  was  still  pending  when  the  plain- 
tiff appeared  by  his  attorney."  With  the  appearance  of 
the  plaintiff,  the  reason  for  the  motion  was  removed,  and 
it  was  very  properly  overruled.  It  is  provided  by  statute 
that  ''  if  the  plaintiff  does  not  appear  by  himself,  or  agent, 
on  the  day  of  trial,  he  shall  be  nonsuited,  and  judgment 
entered  against  him  for  the  costs."  Rev.  Stat..  347,  §  13. 
But  the  plaintiff  did  appear,  and  that  too  before  a  deci- 
sion of  the  motion  was  made.      Under  such  circumstances 


BURLINGTON,  MAY,  1849.  193 

Wright  V.  Phillies. 

it  would  have  been  irregular  to  order  a  nonsuit.  Smith 
V.  Crane,  12  Vt.,  487. 

It  is  also  contended,  that  the  justice  erroneously  over- 
ruled the  motion  made  against  the  sufficiency  of  the  com- 
])hiint,  on  the  assumption  that  it  contained  no  allegation 
that  the  premises  lay  in  the  township  for  which  the  justice 
was  elected.  The  complaint  is  introduced  by  the  foHow- 
ing  words  :  "  Before  L.  B.  Fleak,  a  justice  of  the  peace 
in  and  for  Jackson  township,  Lee  county,  Iowa."  In 
the  body  of  the  complaint,  the  land  is  described  as  being 
"  in  said  county,  and  known  as  the  east  half  of  the 
south-west  quarter  of  section  24,  township  65,  range  5 
west."  A\'e  think  the  venue  is  sufficiently  averred  in  the 
complaint,  even  if  the  jurisdiction  of  justices  in  such 
cases  was  limited  to  their  respective  townships.  It 
virtually  alleges  the  land  to  be  in  Lee  county,  and  de- 
scribes it  by  U.  S.  government  surveys.  These  surveys 
are  public  and  within  the  judicial  knowledge  of  all  our 
courts.  That  township  65,  in  range  5  west,  is  within 
Jackson  township,  in  Lee  county,  is  a  matter  which  a 
justice  of  the  peace  of  that  county  might  well  determine 
ex  officio.  It  must  be  presumed  that  he  knows  the  terri- 
torial extent  of  his  own  jurisdiction,  and  the  lands  therein, 
as  designated  by  the  public  surveys.  Under  this  view, 
we  assume  that  the  complaint  is  sufficient,  even  if  tested 
by  the  technical  rule,  that  the  pleadings  before  inferior 
tribunals  must  show  jurisdiction.  But  this  rule  is  greatly 
relaxed  in  its  application  to  justices  of  the  peace.  Their 
proceedings  must  necessarily  be  regarded  with  more  indul- 
gence and  liberality.  Nothing  more  should  be  required 
of  them,  than  a  substantial  compliance  with  the  statute, 
conferring  and  regulating  their  powers.  The  complaint 
in  this  case  comes  within  the  regulations  of  the  act.  Rev. 
Stat.,  345,  §  6. 

There  is  a  still  stronger  reason  "why  the  motion  in 
quest'fui  should  not  have  prevailed.  It  is  expressly  pro- 
vided by  statute,  that  "  the  jurisdiction  of  justices  of  the 
peace  shall  be  co-extensive  with  their  respective  counties." 


194  SUPREME  COUKT  CASES, 

Wright  V.  Phillips. 

Rev.  Stat.,  312,  §  16.  There  is  another  section,  it  is  true, 
requiring  every  action  to  be  brought  before  a  justice  of  the 
township  wherein  the  defendant  resides,  or  wherein  the 
phiintifF  resides  and  the  defendant  may  be  found.  Rev. 
Stat.,  314,  §  31.  To  this  limitation,  however,  there  are 
several  exceptions,  even  in  the  three  sections  immediately 
following  the  one  in  which  the  limitation  is  established ; 
and  on  page  345,  §  5,  actions  of  forcible  entry  and  de- 
tainer, and  of  unlawful  detainer,  "  are  made  cognizable 
before  any  justice  of  the  peace  of  the  county  in  which  the 
offences  may  be  committed."  The  section  last  referred  to 
applies  exclusively  to  actions  of  forcible  entry  and  detainer, 
and  unlawful  detainer,  and  makes  those  actions  an  excep- 
tion to  the  township  restraint,  enacted  in  the  preceding 
sections,  by  expressly  providing  that  any  justice  of  the 
peace  in  the  county  shall  have  cognizance  of  such  actions. 
The  jurisdiction  of  justices  being  co-extensive  with  the 
county  in  this  proceeding,  and  the  complaint  designating 
the  premises  as  being  within  the  appropriate  county,  it 
averred  in  that  particular  all  that  was  necessary. 

The  next  objection  is  in  relation  to  the  verdict.  It  ap- 
pears that  it  was  not  returned  in  the  form  provided  by  law. 
The  justice  informed  the  jurors  of  the  fact,  and  they  then 
requested  him  to  wi'ite  one  in  due  form.  He  did  so,  and 
it  was  signed  by  their  foreman.  Though  corrected  in 
form,  it  was  not  changed  in  substance;  nor  was  it  even  cor- 
rected without  the  consent  of  the  jury.  Upon  this  point, 
the  amended  return  of  the  justice  shows,  that  when  the 
jurors  returned  with  their  verdict,  he  informed  them  that  it 
was  not  in  proper  form,  and  therefore  they  requested  him  to 
draw  up  such  a  verdict  as  the  case  required.  The  amended 
verdict  was  prei)ared  at  the  request  of  the  jurors,  and  by 
the  signature  of  their  foreman  was  virtually  adopted  by 
them,  and  thus  became  as  much  their  verdict,  as  if  it 
had  been  written  by  one  of  their  own  number.  The  pro- 
ceeding was  proper.  It  was  the  duty  of  the  justice  to 
advise  the  jurors  in  relation  to  the  forms  provided  bylaw; 
to  admonish  thcni  of  any  apparent  defects,  and  direct  their 


BURLINGTON,  MAY,  1849.  195 

Wright  V.  Phillipa. 

correction.  If  this  duty  could  be  more  generally  per- 
formed by  justices,  much  less  irregularity,  injustice  and 
delay  would  result  from  their  proceedings. 

It  is  not  an  unusual  practice  for  com'ts  to  direct  im- 
perfect verdicts  to  be  corrected.  They  are  not  final  until 
pronounced  in  open  court,  and  entered  upon  its  record  or 
docket.  Corrections  and  alterations  may  be  made  by  the 
jurors,  at  any  time  before  they  are  dismissed,  and  before 
their  verdict  is  recorded.  Root  v.  SJierwood^  6  John. ,  68  ; 
Blackley  v.  Sheldon,  7  ib. ,  32  ;  The  State  v.  Undemoody 
2  Ala.,  744;  Ward  \.  Bailey,  10  SheiJ.,  316;  Tarlton\. 
Briscoe,  1  A.  K.  Marsh.,  67 

By  many  courts  it  has  been  determined,  that  any  in- 
formality in  a  verdict  maybe  corrected  even  after  the  jury 
are  discharged.  In  Foster  v.  Caldwell,  18  Vt.,  (3  Washb.) 
176,  upon  an  issue  in  assumpsit  a  verdict  of  "guilty"  was 
returned,  and  after  the  jury  were  discharged  the  court  per- 
mitted the  verdict  to  be  amended,  by  striking  out  the  word 
"  guilty,"  and  inserting  "  did  assume  and  promise."  This 
in  the  supreme  court  of  that  state  was  held  to  be  correct. 
If  such  an  alteration  may  be  correctly  made  after  the  jury 
are  dispersed,  the  propriety  of  the  amended  verdict  in 
the  present  case  cannot  be  questioned.  It  is  not  a  more 
material  departure  from  the  original  return,  and  it  appears, 
besides,  to  have  been  made  by  the  direction  and  consent 
of  the  jury  before  they  were  discharged. 

In  our  territorial  supreme  court,  it  was  decided,  that 
though  a  verdict  cannot  be  changed  in  meaning,  it  may  be 
altered  in  form,  without  the  consent  of  the  jury,  even  after 
they  have  separated.     Gordon  v.  Higley,  Morris,  13. 

We  conclude,  then,  that  the  district  court  did  not  err 
in  refusing  to  reverse  the  judgment  of  the  justice  for  the 
errors  urged  on  certiorari. 

2.  The  second  error  assigned  in  this  com't  is,  that  the 
court  below  rendered  an  original  judgment  instead  of 
affirming  that  of  the  justice.  The  power  of  the  district 
court  over  judgments  of  justices  is  not  confined  to  a  mere 
affirmance  or  reversal  of  their  decisions  :   but  a  decision 


196  SUPREME  COURT  CASES, 

Kerr  v.  Leigliton. 

is  to  be  given  "  as  tlie  riglit  of  the  matter  may  appear." 
li  "  may  affirm  or  reverse  the  judgment  in  whole  or  in 
part,  and  may  issue  executions  as  in  other  judgments  ren- 
dered before  said  court,"  Rev.  Stat.,  337,  §  5.  The  judg- 
ment of  the  district  court  is  virtually  an  affirmance  of  the 
proceedings,  according  to  "the  right  of  the  matter,"  as  it 
appeared  of  record.  It  in  no  way  conflicted  with  the 
verdict  and  judgment  of  the  justice ;  but  in  pursuance  of 
them,  a  more  formal  and  specific  judgment  was  rendered, 
which  might  be  enforced,  and  from  which  a  writ  of  resti- 
tution and  execution  might  issue.  This,  we  think,  was 
done  within  the  legitimate  authority  of  the  court,  and 
within  the  letter  of  the  statute. 

Judgment  aflirmed. 

J.  C.  Hall,  for  plaintiffs  in  error, 

L,  R,  Reeves,  for  defendant. 


KERU  V.  LEIGHTON. 

Two  contiguous  quarter  sectious  of  land  may  be  regarded  as  one  entire  tract 

or  possession. 
The  "act  to  allow  and  regulate  the  action  of  right"  provides  a  remedy  to 

recover  the  possession  of  land,  and  also  a  remedy  to  determine  the  title. 
To  enable  the  plaintiff"  to  recover  in  an  action  of  right,  it  should  appear  that 

the  defendant  acted  as  owner,  landlord  or  tenant  of  the  property  claimed ; 

and  if  as  tenant  that  lie  was  in  possession. 
Where  the  defendant  pleads  to  an  action  of  right,  in  the  form  provided  by 

statute,  he  virtually  admits  himself  in  possession.     As  possession  is  not 

denied  by  such  a  plea,  it  need  not  be  proved. 
If  plaintiff  seeks  to  recover  more  than  nominal  damages  for  withholding 

the  premises  in  an  action  of  right,  proof  of  the  time  and  circumstances 

becomes  essential. 
The  .judgment  of  a  court  of  competent  and  general  jurisdiction  cannot  be 

collaterally  assailed. 


BURLINGTON,  MAY,  1849.  197 


Kerr  v.  Leierhton. 


Error  to  Lee  District  Court, 

Opinion  hy  Greene,  J.  This  was  an  action  of  right 
instituted  hy  William  Leighton  against  Alexander  Kerr. 
In  the  declaration,  the  plaintiff  claimed  right  to  the  im- 
mediate possession  of  the  north-east  quarter  of  section  9, 
and  the  nortli-west  quarter  of  section  10,  in  township  65 
north,  of  range  5  west,  of  the  5th  principal  meridian. 
Tins  land  comprises  a  portion  of  the  half-hreed  tract  in 
Lee  county.  The  cause  was  submitted  to  a  jmy  under 
the  general  issue  and  a  verdict  retm^ned  finding  the 
right  of  the  property  to  be  in  the  plaintiff  below.  He 
ap[)ears  to  have  derived  title  to  the  land  in  question 
from  Antoine  Leclaire.  In  order  to  establish  Leclau'e's 
title,  and  right  to  convey  the  premises,  the  partition  record 
of  the  half-breed  reservation  was  admitted  in  evidence. 
Several  questions  were  raised  against  the  admissibility  of 
this  record;  but  as  the  same  questions  were  adjudicated 
and  decided  in  Wright  v.  Marsh,  Lee  ^  Delavan*  it 
is  unnecessary  to  consider  them  here.  We  will  therefore 
entertain  such  points  only  as  were  not  acted  upon  in  that 
case. 

1.  It  is  urged  as  error  that  the  court  instructed  the 
jmy  that  "  if  they  found  from  the  evidence  that  said 
defendant  was  in  possession  of  the  land,  or  any  portion 
of  the  land  described  in  plaintiff's  declaration,  that  was 
sufficient  to  entitle  the  plaihtiff  to  recover  the  whole,  so 
far  as  the  question  of  possession  is  concerned ; "  and  also 
in  refusing  to  instruct  the  jury  that,  unless  they  find  from 
the  evidence  that  at  the  commencement  of  this  suit  the 
defendant  was  in  possession  of  said  north-west  quarter 
sectiou  or  claimed  the  same,  as  owner  and  landlord,  they 
will  find  for  the  defendant  to  the  extent  of  such  north- 
west quarter. 

The  objection  to  the  instruction  given,  and  to  the  in- 

*  Ante,  94. 


198  SUPREME  COURT  CASES, 

Kerr  v.  Leighton. 

struction  refused,  contemplates  that  tlie  two  quarter  sec- 
tions of  land  described  in  tlie  declaration  are  separate  and 
distinct  tracts,  and  that  proving  possession  of  one  does 
not  establish  possession  of  the  other,  as  a  portion  of  the 
same  body  of  land.  But  it  does  not  follow  that  land  is  in 
separate  and  different  parcels  which  is  comprised  in  dif- 
ferent quarters  or  in  different  sections.  It  may  be  one 
complete  tract,  one  entire  plantation  or  possession,  though 
embraced  in  several  sections,  or  even  in  different  townships. 
A  possession  is  not  necessarily  limited  to  one  subdivision 
of  land.  If  so  limited,  no  one  possession  could  extend 
beyond  the  smallest  legal  subdivision ;  even  an  eighty 
acre  lot  would  be  regarded  as  separate  portions  of  land, 
because  embracing  two  distinct  subdivisions  as  regulated 
by  law  of  Congress.  But  it  is  conceded  by  the  counsel 
m-f^ing  error,  that  a  quarter  section  may  be  treated  as  one 
l>arcel  of  land.  If  a  quarter  section  may  be  so  regarded, 
why  not  a  half  section,  or  a  whole  section  ?  In  the  present 
case  the  declaration  claims  "  a  tract  of  land  with  the 
jijjpurtenances,"  designates  two  quarter  sections  as  com- 
posing that  tract,  and  refers  to  them  as  a  property  to 
which  the  plaintiff  has  immediate  right  of  possession. 
Besides,  the  two  quarter  sections  lie  contiguous  to  each 
other.  They  are  no  way  separated  by  other  lands  or 
possessions,  and  cannot  therefore  be  considered  separate 
portions.  Evidence  of  possession  then  would  extend  to 
both  quarter  sections. 

But  it  is  contended  by  counsel  for  the  defendant  in 
error,  that  it  was  not  necessary  for  the  demandant  below 
to  prove  that  the  defendant  was  in  possession  of  the 
property  claimed,  in  order  to  recover.  The  "  act  to  allow 
and  regulate  the  action  of  right,"  (Rev.  Stat.,)  626,  en- 
larges upon  the  common  law  writ  of  right.  It  supersedes 
the  action  of  ejectment,  (§  20,)  and  furnishes  within  its 
ample  provisions  an  adequate  remedy  for  mere  possessory 
rights,  and  also  to  establish  actual  seizin,  or  inheritance 
in  lands.     The  first  section  declares,  *'  that  hereafter  the 


BURLINGTON,  MAY,  1849.  199 

Kerr  v.  Leighton. 

proper  remedy  for  recovering  any  interest  in  lands,  tene- 
ments or  hereditaments  shall  be  by  an  action  of  right." 
The  fourth  section  provides,  that  ''  the  action  may  be 
brought  against  any  person  acting  as  owner,  landlord 
or  tenant  of  the  property  claimed."  It  appears,  then, 
that  the  action  may  be  brought  against  persons  not  in 
possession  of  the  premises ;  against  him  who  acts  as 
owner  or  landlord, — and  a  person  may  act  in  either  of 
these  capacities  without  being  in  possession.  The  de- 
fendant may  even  be  a  non-resident  of  the  county  in 
which  the  property  is  situated.  Rev.  Stat.,  p.  527,  §§8, 
9,  11. 

To  enable  the  plaintiff  to  recover  in  this  action,  it  should 
appear  by  evidence,  or  by  the  pleadings,  that  the  defend- 
ant acted  as  owner,  landlord  or  tenant  of  the  property 
claimed ;  and  if  as  tenant,  it  should  appear,  that  he  was 
in  possession  of  the  premises  at  the  commencement  of  the 
suit ;  for,  in  this  particular,  the  action  is  assimilated  to 
that  of  ejectment. 

Where  the  defendant  pleads  to  the  merits  in  the  form 
provided  by  statute,  he  denies  the  right  of  the  plaintiff  to 
the  land,  and  to  damages  for  its  detention.  He  virtually 
confesses  possession  by  this  plea,  but  seeks  to  avoid  dam- 
ages by  denying  the  plaintiff's  right  to  the  premises.  As 
the  plea  joins  the  mise  or  issue  upon  the  right  of  posses- 
sion, or  actual  seizin  of  the  property,  possession  need  not 
be  proved  because  it  is  not  denied. 

If,  however,  the  plaintiff  seeks  to  recover  more  than 
nominal  damages  for  withholding  the  premises,  proof 
of  the  time  and  circumstances  of  the  detention  becomes 
essential. 

2.  As  another  objection  to  the  proceedings  below,  the 
plaintiff  in  error  complains  that  he  was  not  permitted  to 
show  fraud  and  collusion  in  the  judgment  of  partition, 
under  which  the  defendant  in  error  deduced  title.  This 
evidence  was,  we  think,  very  properly  excluded.  That  a 
judgment  emanating  from  a  court  of  competent  and  gene- 


200  SUPREME  COURT  CASES. 

Kerr  v.  Leighton. 

ral  jurisdiction  cannot  be  collaterally  assailed,  we  have 
already  decided  in  the  case  of  Wright  v.  Marsh,  Lee  ^ 
Delavan;*  and  such  a  judgment  is  removed  even  be- 
yond the  collateral  imputation  of  fraud.  Webster  v.  Reid^ 
Morris,  467. 

Judgment  affirmed. 

Geo.  C.  Dixon,  for  plaintiff  in  error. 

S.  T-  Reidj  for  defendant. 

•  Ante,  94. 


CASES  IN  LAW  AND  EQUITY, 


DETEBMLNEO  IN  THB 


SUPREME  COURT  OF  THE  STATE  OF  IOWA, 

OTTUMWA,  JUNE  TERM,  A.D.  1849, 
In  the  Third  Year  of  the  State, 


Hon.  JOSEPH  WILLIAMS,  Chief  Justice. 
Eon.  JOHN  F.  KINNEY,    )  ^   , 
Hon.  GEO.  GREENE,  J  Juag^ 


HAEROW  et  al.  v.  BAKER  et  al 

In  an  action  of  forcible  entry  and  detainer,  proof  that  the  party  in  posses- 
sion was  frightened  by  threats,  or  other  circumstances,  to  yield  his  posses- 
sion to  the  defendant,  is  sufficient  to  show  that  the  entry  was  forcible. 

Threats  that  induce  fear  of  forcible  entry  and  ouster,  -without  fear  of  per- 
sonal violence,  are  sufficient  to  establish  a  forcible  entry. 

Error  to  Davis  District  Court. 

Opinion  by  Kinney,  J.  This  was  an  action  of  forcible 
entry  and  detainer,  commenced  before  a  justice  of  tlie 
peace.  Judgment  was  rendered  against  the  defendants  in 
error  before  the  justice.  The  case  was  appealed  to  the 
district  court,  and  judgment  in  the  district  court  was  ob- 
tained against  the  plaintiffs  in  error,  to  reverse  which  he 
brings  this  writ  of  error.  The  plaintiffs  assign  for  error : 
Vol.  II.  14 


202  SUrREME  COURT  CASES, 


Harrow  v.  Baker. 


1.  The  court  erred  in  cliarging  the  jury,  that  threats  to 
dispossess  by  force,  did  not  amount  to  forcible  entry. 

2.  The  court  erred  in  charging  the  jury,  that  if  Harrow 
left  from  fear  produced  by  threats  and  superior  numbers, 
it  should  be  fear  of  personal  violence  to  himself  or  family, 
and  not  merely  fear  that  a  forcible  entry  and  ouster  would 
be  made. 

It  appears  from  the  bill  of  exceptions,  that  the  plaintiffs 
in  error  were  the  lessees  of  Agnes  Baker,  of  a  farm  and 
dwelling-house  in  Wapello  county,  of  which  she  wished 
to  obtain  possession.  She  went  to  the  house  on  Sunday 
morning,  and  requested  Harrow,  who  was  then  the  sole 
occupant,  to  leave,  which  he  appeared  willing  to  do  as 
soon  as  he  could  find  another  place,  and  offered  to  give  up 
one  room  in  which  to  place  her  goods.  Agnes  Baker  then 
left,  and  returned  in  the  afternoon  with  one  Chapman, 
and  about  thirty  other  men,  who  expressed  to  Harrow  a 
determination  that  he  should  leave  immediately,  or  they 
would  dispossess  him  by  force.  They  gave  him  until 
twelve  o'clock  at  noon  the  next  day,  declaring,  that  if 
he  did  not  leave  by  that  time,  they  would  put  him  out. 
Harrow  agreed  to  be  out  by  the  next  day. 

It  seems  that  at  the  time  appointed,  Agnes  Baker, 
Chapman,  and  the  crowd  again  assembled  at  the  house, 
bringing  the  household  goods  of  Agnes,  for  the  purpose  of 
putting  her  in  possession,  and  removing  Harrow,  if  still 
there.  A  portion  of  Harrow's  goods  were  out  of  the  house, 
and  the  crowd  assisted  in  removing  the  remainder,  and 
putting  those  of  Agnes  Baker  in.  It  ai3pears  that  Harrow 
resisted  putting  in  the  goods  of  Baker.  This  is  the 
evidence  upon  which  the  instructions  of  the  court  were 
loredicated. 

The  court  charged  the  jury,  that  threats  to  dispossess  by 
force  did  not  amount  to  forcible  entry.  If  Harrow  left 
from  fear  produced  by  threats  and  superior  numbers,  it 
should  be  fear  of  personal  violence  to  himself  or  family, 
and  not  merely  fear  that  a  forcible  entry  and  ouster  would 
be  made.     The  court  also  instructed  the  jury,  that  he  who 


OTTUMWA,  JUNE,  1849.  203 

Harrow  v.  Baker. 

abandons  his  possession  to  avoid  being  turned  out  by  force 
uninjured,  is  not  forcibly  dispossessed,  &c.  Other  instruc- 
tions were  given ;  but  if  in  these  the  court  erred,  it  will 
not  be  necessary  to  go  fui-ther,  particularly  as  these  were 
applicable  to  the  state  of  facts  upon  the  trial. 

The  Rev.  Stat.,  345,  §  2,  clearly  defines  what  shall  con- 
stitute forcible  entry  and  detainer.  It  provides,  "  that  if 
any  person  shall,  by  such  words  or  actions  as  have  a  natu- 
ral tendency  to  excite  fear  or  apprehension  of  danger,  or 
by  putting  out  of  doors  or  carrying  away  the  goods  of  the 
party  in  possession,  or  by  entering  peaceably  and  then 
turning  out  by  force,  or  frightening  by  threats  or  other 
circumstances  of  terror^  the  party  to  yield  possession,  in 
>ucli  case  every  person  so  offending  shall  be  deemed  guilty 
of  a  forcible  entry  and  detainer,  within  the  meaning  of 
this  act." 

This  statute  is  very  comprehensive,  and  under  it  this 
action  can  be  maintained  where  actual  physical  force  is 
not  used  in  the  entry  and  detainer.  If  the  party  in  pos- 
session is  frightened,  by  threats  or  other  circumstances  of 
terror,  to  yield  his  possession  to  another,  the  entry  is 
forcible. 

In  England,  proceedings  of  this  kind  are  either  by 
indictment,  or  by  a  complaint  before  a  justice  of  the 
peace,  in  the  nature  of  a  criminal  prosecution.  That 
which  by  their  law  is  made  an  offence  punishable  by  fine 
and  imprisonment,  is  by  ours  a  civil  action  to  obtain  pos- 
session ;  and  hence  a  resort  to  intimidation  and  threats, 
accompanied  with  an  array  of  force  and  power  to  obtain 
possession  of  premises,  which,  although  wrongfully  with- 
held, ought  to  be  regarded  by  the  courts  with  great  dis- 
favor. If  Harrow  was  holding  over  without  color  of  right, 
the  party  entitled  to  possession  had  a  remedy  at  law. 
But  in  lieu  of  invoking  the  law  for  assistance  and  relief, 
she  resorts  to  the  strong  arm  of  physical  force,  and  in  this 
manner  obtains  possession. 

But,  did  the  court  err  in  instructing  the  jury  that 
threats  to  dispossess  by  force  did  not  amount  to  a  forcible 


204  SUPREME  COURT  CASES, 

Harrow  v.  Baker. 

entry,  &c.  ?  By  tlie  English  autliorities  tliese  instructions 
may  have  been  correct.  But  we  think,  under  our  statute 
giving  the  remedy  in  cases  where  force  or  personal  violence 
were  not  actually  used,  and  thus  saving  the  necessity  of  a 
personal  conflict  before  the  right  of  action  could  accrue, 
that  the  instructions  are  erroneous. 

The  statute  of  Illinois  provides,  ''  that  if  any  person 
shall  make  entry  into  lands,  tenements  or  other  posses- 
sions, except  where  entry  is  given  by  law,  or  shall  make 
any  such  entry  hj  force,''''  kc.  This  statute  declares  that 
the  entry  shall  be  by  force,  without  any  qualification, 
and  yet  it  was  held  under  this  statute,  by  the  supreme 
court,  that  if  the  entry  was  wrongful,  and  without  lawful 
right,  that  actual  force  and  physical  violence  were  not 
necessary  to  sustain  the  action.  Atkinson  v.  Lester,  1 
Scam.,  407. 

In  the  case  of  The  State  v.  Pollock,  4t  Iredell's  R.,  305, 
it  was  held,  that  "  where  a  party  entering  upon  land  in 
the  possession  of  another,  either  by  his  behaviour  or  speech 
gives  those  who  are  in  possession  just  cause  to  fear  that 
he  will  do  them  some  bodily  harm  if  they  do  not  give  way 
to  him,  his  entry  is  esteemed  forcible."  The  English 
doctrine  that  force  was  necessary,  does  not  appear  to  be 
regarded  as  essential  in  this  case.  We  are  not  aware  of 
the  provisions  of  the  statute  under  which  this  decision 
was  made. 

But  by  our  statute,  the  right  of  action  may  be  complete 
in  the  absence  of  all  force.  Any  circumstance  of  terror, 
which  will  induce  the  party  to  yield  possession,  is  all  that 
is  necessary.  Threats  which  would  have  a  tendency  to 
excite  fear,  not  of  personal  violence  alone,  but  reasonable 
fear  of  a  violent  ouster  of  the  goods  of  the  person  in  pos- 
session, we  think,  under  our  statute,  will  enable  the  party 
dispossessed  by  such  fear  to  recover  possession  in  an 
action  of  forcible  entry  and  detainer.  This  is  the  only  fair 
and  legal  construction  that  can  be  given  to  this  statute, 
and  such  a  one  as  we  think  was  intended  by  the  legisla- 
ture, thereby  preventing  persons  from  resorting  in  a  rude, 


OTTL'MWA,  JUNE,  1849.  205 

Wiley  V-  Shoemak. 

violent  and  lawless  manner,  to  a  remedy  fraught  with  such 
dangerous  consequences. 

The  court  therefore  erred  in  charging  the  jury,  that  if 
Harrow  left  from  fear  produced  by  threats  and  superior 
numbers,  it  should  be  fear  of  personal  violence  to  himself 
or  family,  and  not  merely  fear  that  a  forcible  entry  and 
ouster  would  be  made  ;  as  also  in  the  instruction  that  he 
who  abandons  his  possession  to  avoid  being  turned  out  by 
force,  uninjured,  is  not  forcibly  dispossessed.  It  is  not 
necessary  that  a  person  should  wait  until  he  is  actually 
turned  out  by  force,  before  his  right  of  action  is  complete. 

Judgment  reversed. 
J,  C,  Hall,  Wright  and  Knapp,  for  plaintiff  in  error. 
S.  W,  Summers  and  Geo,  May,  for  defendant. 


WILEY  V.  SHOEMAK. 

If  evidence  is  adduced  wliich  tends  even  remotely  to  prove  facts,  ■which,  if 
established,  would  support  the  action,  a  nonsuit  should  not  be  sranted. 

If  a  verdict  for  the  plaintiff  would  be  clearly  against  the  weight  and  legal 
effect  of  the  evidence,  a  nonsuit  may  be  ordered. 

A  motion  to  nonsuit  plaintiff  after  evidence  is  submitted,  is  in  the  nature  of 
a  demurrer  to  evidence. 

A  nonsuit  should  not  be  granted  without  the  consent  of  plaintiff,  unless  the 
evidence  is  entirely  irrelevant,  or  has  no  bearing  upon  a  material  point, 
without  proof  of  which  a  verdict  could  not  be  supported. 

After  a  note  for  a  certain  sum,  payable  in  flour,  is  due,  it  becomes  a  cash 
note,  and  a  demand  of  payment  is  not  necessary. 

Ekror  to  Jefferson  District  Court. 

Opinion  by  Greene,  J.  This  case  was  taken  by  appeal 
from  a  justice  of  the  peace  to  the  district  court.  On  the 
trial  in  that  court,  a  promissory  note  made  by  Abner 
Wiley,  and  payable  to  John  Shoemak  in  flour,  at  the  Fair- 


206  SUPREME  COUKT  CASES, 

Wiley  V.  Slioemak. 

field  prices,  was  read  in  evidence.  The  i)laintiff  proved 
that  he  demanded  the  flour  about  the  time  suit  was 
commenced,  and  rested  his  case  ;  and  thereupon  the 
defendant  moved  to  nonsuit  the  plaintiff,  which  the  court 
refused.  Verdict  and  judgment  for  the  plaintiff. 
Two  questions  are  submitted  to  our  determination : 
1.  Did  the  court  err  in  overruling  the  motion  to  non- 
suit the  plaintiff  ? 

To  this  we  give  an  unqualified  answer  in  the  negative. 
Even  assuming  the  supposition  that  the  plaintiff  had  not 
adduced  sufficient  evidence  to  make  out  his  case  conclu- 
sively, it  would  still  have  been  improper  to  grant  the 
motion,  and  thus  preclude  the  action  of  the  jury  upon 
the  question  at  issue.  The  sufficiency  of  the  testimony, 
in  proving  the  demand,  could  only  be  passed  upon  legiti- 
mately by  the  jury ;  and  the  legal  effect  of  such  proof 
would  come  properly  under  the  determination  of  the  court. 
Wilkinson  v.  Scott,  1 7  Mas. ,  249.  This  rule  must  especially 
obtain  under  the  statute  of  our  state,  as  shown  by  former 
decisions  of  this  court.  And  it  is  a  doctrine  that  should  be 
recognized  wherever  the  right  of  trial  by  jury  is  held  sacred, 
that  when  the  evidence  tends,  although  remotely,  to  show 
facts,  which,  if  established,  would  supi3ort  the  action,  a 
nonsuit  ought  not  to  be  ordered,  but  the  case  should  be 
submitted  to  the  jury.  This  is  conceded  even  in  Maine, 
where  arbitrary  nonsuits,  per  curiam,  appear  to  be  most 
in  vogue.  Foster  v.  Dixfield,  6  Shep. ,  380.  On  this  point, 
see  also  Barlow  v.  Brands,  3  Green,  N.  J.,  248;  Adams 
V.  Tiernan,  5  Dana,  394;  Taylor  v.  White,  2  Monr.,  94; 
Davis  V.  Hoxey,  1  Scam.,  406.  But  if  a  verdict  for  the 
plaintiff  would  be  against  the  clear  weight  and  effect  of  the 
evidence,  a  nonsuit  may  be  ordered.  Rudd  v.  Davis,  7  Hill, 
529 ;  3  ib.,  287.  This  must  necessarily  follow  from  the 
character  of  the  motion  to  nonsuit  the  plaintiff.  It  is  like  a 
demurrer  to  evidence,  and  admits  all  the  facts  to  be  proved, 
upon  which  the  evidence  bears.  If  all  the  facts  adverted 
to  by  the  proof  are  not  sufficient  to  sustain  the  action 
at  law,  a  nonsuit  could  properly  be  awarded  by  the  court. 


OTTUMWA,  JUNE,  184^.  207 

Wiley  V.  Slioemak. 

Gregory  v.  Neshit^  5  Dana,  419;  Curler.  Beers,  3  J.  J. 
Marsh.,  170.  In  the  present  case,  it  is  conceded,  that  the 
only  fact  requiring  proof  was  the  demand,  and  that  at  least 
conkl  be  rationally  inferred  from  the  evidence ;  hence  the 
court  acted  jDroj^erly  in  refusing  the  nonsuit. 

Again,  it  is  a  well  recognized  rule  of  law,  that  a  nonsuit 
cannot  be  ordered  by  the  court  without  the  consent  of  the 
plaintiff.  Be  Wolfe  v.  Rabajid,  1  Pet.,  447;  Dove  v. 
Grymes,  ib.,  469  ;  Crane  v.  Morris,  6  ib.,  598 ;  Mitchell  x. 
New  England  Marine  Insurance  Company,  6  Pick.,  117; 
Hunt  V.  Stewart,  7  Ala.,  525 ;  Martin  v.  Webb,  5  Pike,  72 ; 
St.  Louis  Floating  Bock  Ins.  Co.,  8  Mo.,  625;  Wells  v. 
Goty,  ib.,  681;  Smith  v.  Crane,  12  Vt.,  487;  Booe  v. 
Davis,  6  Blackf.,  115;  Irving  v.  Sargent,  1  S.  &  K,  360; 
Rogers  v.  Madden,  2  Bailey,  321.  This  we  deem  the  safest 
practice  ;  still  it  is  not  unusual  for  com'ts  to  entertain  the 
■  power  of  ordering  a  nonsuit,  regardless  of  plaintiff's  acqui- 
escence, when  the  evidence  is  entirely  irrelevant,  and  has 
no  legitimate  bearing  upon  the  issue  or  upon  a  material 
point,  withoift  proof  of  which  a  verdict  could  not  be  sup- 
jiorted.  Clason  v.  Bird,  2  Brev.  S.  C,  370;  Fratt  v.  Hull, 
13  Johns.,  334;  FootY.  Sabin,  19  ib.,  159;  Heally  v.  Utley, 
1  Cowen,  353.  But  even  in  these  cases,  it  is  conceded 
that,  if  any  fact  is  in  dispute  or  doubt,  the  matter  should 
abide  the  verdict  of  a  jury.  It  is  only  when  there  is  an 
entire  failure  of  evidence  to  establish  any  one  essential 
averment,  that  the  court  should  direct  the  plaintiff  to  be 
nonsuited.     1  Starkie's  Ev.,  400. 

2.  Was  a  demand  of  the  flour  necessary  at  law  ?  Clearly 
not.  The  note  was  made  payable  one  day  after  date,  in 
flour.  When  due,  it  became  to  the  holder  the  same  as  a 
cash  note,  possessing  lilce  negotiable  qualities,  and  subject 
to  like  liabilities  and  remedies. 

In  Church  v.  Feterow,  2  Penn.,  301,  it  was  held  that 
when  a  note  is  given  for  the  payment  of  a  certain  sum,  in 
furniture  or  other  specific  articles,  within  a  stated  time,  the 
payer  has  an  election  to  satisfy  the  note,  in  such  specific 
articles  or  in  money,  until  the  day  of  payment,  but  after 


208  SUPREME  COURT  CASES, 

Lucas  V.  Cassaday. 

that  day  is  past,  his  election  is  gone,  and  the  payee's  right 
to  demand  money  becomes  absolute.  So  also  in  Stewart 
V.  Donelly,  4  Yerg.,  177  ;  Saunders  v.  Richardson^  2  Sm. 

6  Marsh.,  90;  Orr  v.  Williams,  5  Humph.,  423  ;  Lawrence 
V.  DougUery,  5  Yerg.,  435  ;  Miller  v.  McClain,  10  ih.,  245; 
Vanhooser  v.  Logan,  3  Scam.,  389;   Plowman  v.  Riddle, 

7  Ala.,  775.  And  in  New  York  it  has  been  decided,  that 
a  note  for  a  certain  sum  payable  in  property  may  be  given 
in  evidence  under  the  money  counts.  Smith  v.  Smith,  2 
John.,  235. 

In  the  case  at  bar,  the  note  had  been  some  time  due 
before  suit  was  commenced,  and  thereupon  became  payable 
in  cash  ;  a  demand  of  the  flour  was  not  necessary  to  enable 
the  holder  to  recover.  It  was  held  in  Elkins  v.  Parkhurst, 
17  Vt.,  105,  that  when  a  note  is  payable  in  specific  articles 
on  a  day  certain,  no  demand  is  necessary  before  bringing 
suit. 

Thus  viewing  these  authorities,  and  not  regarding  the 
case  of  Wyatt  v.  Bailey,  Morris,  396,  as  analogous,  we 
can  see  no  error  in  the  proceeding  below. 

Judgment  affirmed. 
Slagle  and  Achison,  for  plaintiff  in  error. 
Charles  NeguSy  for  defendant. 


LUCAS  V.  CASSADAY. 

Where  execution  returns  show  that  sufficient  property  was  levied  npon  and 

appraised  to  satisfy  the  judgment,  the  constable  who  made  the  levy  and 
return  is  not  a  competent  witness  to  prove  that  the  execution  was  not 
satisfied  by  the  levy. 
After  levy  by  execution  on  goods  and  chattels,  sufficient  to  satisfy  the  jud":- 
meni,  the  defendant  in  the  execution  is  divested  of  his  right  to  the  pro- 
perty ;  and  the  u.licer  making  the  levy  becomes  liable  to  the  plaintiff  for 


OTTUMWA,  JUNE,  1849.  209 

Lucas  *.  Cassaday. 

the  debt  if  he  fail  to  perform  his  duty  according  to  the  requirements  of 
law,  or  be  released  by  the  plaintiff. 

After  a  return  by  the  officer  that  property  sufficient  to  satisfy  the  judgment 
has  been  levied  on,  the  defendant  in  the  execution  is,  jjrinia  facie,  dis- 
charged from  tiie  debt. 

In  a  trial  before  a  probate  court,  to  charire  an  estate  with  an  old  judgment 
which  is  claimed  to  have  been  satished  by  a  levy  of  property,  proof  is 
admissible  to  show  that  one  of  tiie  defendants  in  the  judgment  was  a 
security,  and  that  the  principal  became  insolvent  after  his  property  was 
levied  upon  to  satisfy  the  judgment. 


Error  to  Van  Buren  District  Court. 

Opinion  by  Williams,  C.  J.  This  case  came  up  by 
appeal  from  the  decision  of  the  probate  court  of  Van 
Buren  count}-.  The  facts  of  the  case  appear  in  the  bill 
of  exceptions.  John  Lucas,  assignee  of  William  Willis, 
brought  his  suit  against  David  Cassaday  and  William 
Cassaday,  on  a  promissory  note  drawn  in  favor  of  said 
Willis,  for  $25  payable  in  pork,  at  the  customary  price,  to 
be  ■  delivered  at  Keosauqua,  on  or  before  the  25th  day 
of  December,  1844.  The  note  bears  date  September  15, 
1844.  On  the  24th  of  October,  1844,  the  note  was  as- 
signed by  indorsement  in  wi'iting  by  said  Willis  to  John 
Lucas.  On  the  28th  day  of  May,  1845,  suit  to  enforce 
the  payment  of  the  note  was  instituted  by  Lucas  against 
the  payers,  before  a  justice  of  the  peace,  and  judgment 
by  default  was  rendered  against  the  defendants,  for  the 
sum  of  $25  with  interest  and  costs  of  suit.  Upon  this 
judgment  an  execution  was  issued  on  the  9th  day  of 
June,  1845,  and  put  into  the  hands  of  a  constable,  and 
returned  with  the  following  indorsed  as  his  retmm  thereon : 
"  Not  satisfied,  one  wagon  held  under  execution  ap- 
praised at  $50."  On  the  27th  of  April,  1846,  another 
execution  was  issued  and  returned  by  same  constable, 
"  Not  satisfied."  On  the  26th  of  April,  1847,  another 
execution  was  issued  and  put  into  the  hands  of  a  con- 
stable, and  by  him  returned  on  the  22d  of  May,  "  No 
l^rojjcrty  found."  This  being  the  statement  of  the  facts 
of  the   case  as  presented  to  the  district  court,  from  the 


210  SUPREME  COURT  CASES, 

Lucas  V.  Cassaday. 

record  of  the  justice  of  the  peace,  the  plaintiffs  in  the  next 
phice  offered  to  introduce  the  parole  evidence  of  Richard 
B.  Ahernethy,  the  constable,  who  took  the  wagon  on  the 
first  execution,  as  appeared  by  his  return,  to  prove  that  he 
had  re-delivered  the  wagon,  levied*  on,  to  the  defendant, 
without  satisfaction  of  the  same  or  any  part  thereof. 
The  defendant's  counsel  objected  to  this  witness,  as  in- 
competent, on  the  ground  that  he  could  not  be  allowed, 
by  his  own  testimony,  to  throw  the  debt  upon  the  defend- 
ant and  thus  discharge  himself  from  liability  to  pay  the 
plaintiff's  debt ;  or  from  accounting  for  the  wagon  with 
which,  by  his  official  return,  he  now  stands  legally  charged; 
and  claims  that  the  official  return  of  the  constable  could 
not  be  thus  contradicted.  The  court  refused  to  allow 
the  witness  to  testify  as  offered.  To  this  ruling  of  the 
court  the  counsel  for  the  plaintiff  excepted,  and  thereupon 
rested  his  case.  The  defendant's  counsel  then  offered  to 
pro-ve  on  his  part  that  William  Cassaday,  deceased,  and 
whose  administrators  are  defendants  in  this  suit,  was  the 
security  of  David  Cassaday,  who  died  since  the  making 
of  the  note  sued  on,  and  that  his  estate  is  insolvent, 
and  that  the  plaintiff  knew  this  fact ;  and  also  that  the 
wagon  levied  on  was  the  property  of  said  David,  which 
fact  the  plaintiff  also  knew.  To  this  evidence  plaintiff's 
attorney  objected.  The  objection  was  overruled  by  the 
com't,  on  the  ground  that  this  was  a  proceeding  in  the  pro- 
bate court,  under  the  intestate  laws,  and  of  such  a  nature 
"  that  any  defence,  either  at  law  or  in  equity,  might  be 
set  up  to  defeat  his  claim."  The  evidence  was  there- 
fore received,  and  tended  to  prove  said  facts.  To  this 
ruling  of  the  court  the  plaintiff's  counsel  excepted.  The 
case  was  submitted  to  the  court  without  a  jury  by  agree- 
ment. The  court  found  the  facts  to  be  as  stated  in  the 
transcript  of  the  justice  and  the  return  of  the  probate 
court,  and  held  that  the  wagon  taken  on  execution,  being 
of  sufficient  value  to  satisfy  the  judgment,  and  no  account 
having  been  given  of  the  disposal  made  of  it,  that  the 
judgment  was,  prima  facie ^  satisfied,  and  gave  judgment 


OTTUMWA,  JUNE,  1849.  211 

Lucas  V.  Cassaday. 

for  the  defendant;  to  which  the  plaintiff's  counsel  ex- 
cepted.    The  following  errors  were  assigned : 

1.  "  Tlie  district  court  erred  in  excluding  the  testi- 
mony of  llichard  B.  Abernethy,  a  witness  offered  on  the 
part  of  the  plaintiff." 

2.  "  The  district  court  decided  that  the  returns  of  the 
constable,  mentioned  in  the  justice's  transcript,  wQve, prima 

facie,  evidence  of  the  satisfaction  of  the  judgment ;  and 
refused  to  permit  plaintiff  to  explain  the  returns  afore- 
said by  other  testimony." 

3.  "  The  district  court  permitted  proof  that  one  of  said 
defendants  was  security,  and  that  the  principal  was  insol- 
vent, as  set  forth  in  the  bill  of  exceptions." 

The  first  error  assigned  is  predicated  upon  the  fact,  th;it 
Abernethy  the  consiable,  who  took  the  wagon  of  the  de- 
fendant as  a  levy  on  the  execution  to  satisfy  the  plaintin, 
was  a  competent  witness  to  make  the  estate  of  William 
Cassaday  amenable  in  law,  for  the  payment  of  the  claim 
or  debt  of  the  plaintiff,  on  the  judgment  upon  which  this 
proceeding  was  instituted.  Was  he  a  disinterested  witness, 
and  on  this  score  comjjetent  to  testify  for  the  purpose 
proposed  ?  We  think  he  was  not.  It  ajjpears  by  the 
record  of  the  justice  before  whom  the  judgment  was  ob- 
tained, that  he  was  the  constable  into  whose  hands  the 
execution  was  put ;  that  he  proceeded  in  the  performance 
of  his  official  duty  so  far  as  to  make  a  levy  on  a  wagon, 
the  property  of  David  Cassaday,  one  of  the  defendants  in 
the  execution.  Here  his  official  proceedings,  so  far  as  the 
proper  disposal  of  the  property  levied  on  is  concerned, 
ceases ;  except  that  by  his  returns  it  appears  that  the 
property  seized  on  execution  was  apprrised  at  $50, 
which  sum  was  amply  sufficient  to  satisfy  the  execution. 
It  is  true,  that  after  the  lapse  of  nearly  a  year,  another 
execution  was  put  into  his  hands,  and  by  him  returned, 
"  Not  satisfied ;  "  and  that  one  year  after  this  last  re- 
turn, a  third  execution  was  issued  to  his  successor  in 
office  and  returned,  "  No  })roperty  found."  The  returns 
do  not  show  what  dis])osal  was  made  by  him  of  the  pro- 


212  SUPREME  COURT  CASES, 

Lucas  V.  Cassaday. 

perty  of  the  defendant,  which  by  his  return  was  legally  in 
his  hands,  to  be  appropriated  to  the  satisfaction  of  the 
judgment  of  the  plaintiff,  for  whom  by  virtue  of  law  he 
acted  officially,  and  to  whom  he  stood  accountable  for  the 
faithful  performance  of  his  duty  as  constable.  Rev.  Stat., 
330,  §§  2,  4;  Laws  of  1844,  44.  The  constable  was 
bound  to  proceed  in  accordance  with  law,  without  delay  or 
neglect  of  duty,  to  make  the  money  on  the  execution  to 
satisfy  the  debt  of  the  plaintiff,  by  levy  on  the  goods  and 
chattels  of  the  defendant,  and  having  made  the  levj^,  he 
becomes  answerable  to  the  plaintiff  for  the  avails,  unless 
he  be  released  by  the  plaintiff's  own  act,  or  can  show  that 
he  has  disposed  of  it  in  due  course  of  law.  The  facts  in 
this  case  clearly  show  that  the  property  taken  in  execu- 
tion by  him  was  sufficient  to  pay  the  full  amount  of  the 
judgment,  and  that  he,  by  failing  to  account  for  the  pro- 
perty levied,  became  liable  to  the  plaintiff  in  execution, 
on  his  official  bond.  In  4  Mass.,  402,  Chief  Justice  Parsons 
says :  "  When  goods  sufficient  to  satisfy  the  judgment 
are  levied  or  seized  on  2iji.fa.  Che  debtor  is  discharged, 
even  if  the  sheriil  waste  the  goods  or  misapply  the 
money  arising  from  the  sale,  or  does  not  return  his  exe- 
cution. For,  by  lawful  seizure,  the  debtor  has  lost  his 
property  in  the  goods."  For  the  like  doctrine,  see  Minot's 
Digest,  320.  And  as  to  the  effect  of  a  levy  by  execution, 
see  G  Ohio,  490,  and  Laws  of  1844,  p.  46,  §  4.  A  uniform 
concuiTciii-e  of  decisions  by  the  courts  of  our  country  will 
be  found  to  establish  fully  the  doctrine,  that  after  levy  by 
execution,  made  on  goods  and  chattels,  sufficient  to  satisfy 
the  judgment,  the  defendant  in  the  execution  is  divested 
of  his  right  to  the  property,  and  the  officer  making  the 
levy  becomes  liable  to  the  plaintiff  for  the  debt,  if  he  fail 
to  perform  his  duty  according  to  the  requirements  of  the 
law,  or  be  not  released  by  the  plaintiff.  It  matters  not, 
in  this  case,  whether  this  levy  was  made  under  the  ap- 
praisement law  or  not.  In  either  state  of  the  case,  the 
constable  has  clearly  failed  to  show,  by  any  legal  means 
whatever,  how  he  has  disposed  of  the  levy.     To  allow  the 


OTTUMWA,  JUNE,  1849.  213 

Lucas  V.  Cassaday. 

constable,  two  years  after  making  bis  return  officially,  to 
come  in  as  a  witness  fur  tbe  pbiintiff  in  execution,  and  by 
bis  evidence  contradict,  or  explain  away  bis  return,  to  pro- 
cure tbe  payment  of  tbe  indebtedness  out  of  tbe  effects 
of  tbe  defendant's  estate,  would  be  subversive  of  tbe 
plainest  principles  of  justice  and  in  violation  of  tbe  law  of 
evidence.  Persons  bolding  places  of  public  and  legal  trust 
sbould  be  beld  to  a  fiiitbful  performance  of  tbeir  duty.  We 
consider  tbat  tbe  district  court,  b}^  excluding  tbe  witness, 
as  offered  in  tbe  case  at  bar,  ruled  correctly. 

As  to  tbe  second  assignment  of  error,  we  bave  alread}'  said 
enougli  on  tbe  question  involved  in  tbe  first,  to  dispose  of 
tbis.  Tbe  ruling  of  tbe  court  below,  deciding  tbat  tbe 
return  of  tbe  constable  was,  prima  fade,  evidence  of  the 
satisfaction  of  tbe  judgment,  so  far  as  tbe  defendant  is 
concerned,  we  tbink,  bas  been  sbown  to  be  correct  in  law. 
Tbe  same  principles  of  law  are  involved  in  tbe  questions 
presented  by  botb  assignments,  and  tbey  depend  uj)on  tbe 
same  facts.  Tbe  constable  baving  seized  tbe  defendant's 
property  by  virtue  of  tbe  execution,  and  returned  tbe  levy 
so  made  as  sufficient  to  pay  tbe  plaintiff's  judgment,  tbe 
defendant  tbereby  lost  bis  property  in  tbe  wagon  levied 
on,  and  clearly  be  was,  prima  facie,  discbarged  from 
tbe  debt.  Tbe  court  decided  correctly  in  refusing  to 
allow  tbe  plaintiff,  by  tbe  testimony  tbat  was  offered, 
to  explain  away  tbe  legal  effect  of  bis  official  return  to 
the  execution. 

The  third  assignment  of  error  complains  of  the  ruling  of 
the  district  court,  in  permitting  the  defendant  to  show  by 
evidence  that  the  defendant,  whose  estate  the  plaintiff  in 
this  proceeding  seeks  to  charge  with  the  payment  of  this 
debt,  was  not  the  principal,  but  merely  tbe  security  in 
the  original  contract ;  and  that  the  principal  therein  died 
insolvent  after  the  levy  was  made. 

This  being  a  proceeding  under  the  intestate  laws,  we 
cannot  discover  anything  erroneous  in  this  ruling  of  the 
court  below.  Tbe  action  of  the  court,  in  this  matter,  was, 
we  think,  in  accordance  Avith  the  provisions  of  tlie  law, 


214  SUPREME  COURT  CASES, 

Bradley  v.  McCall. 

defining  tlie  jurisdictional  power  of  probate  courts  in  this 
state.  In  this  jiroceeding,  the  defendant  might  avail 
himself  of  any  defence  proper  in  law  or  equity.  The 
evidence  admitted  by  the  court,  we  think,  might  tend  to 
establish  a  release  from  the  claim  of  indebtedness,  as  set 
up  by  the  plaintiff.  But  the  bill  of  exceptions  expressly 
shows  that  this  cause  was  submitted  to  the  court,  without 
the  intervention  of  a  jury  by  agreement ;  and  the  judge 
there  states  that  the  decision  and  judgment  rendered  by 
the  district  court  was  founded  on  the  transcript  there 
referred  to,  and  of  record  in  the  case,  without  reference  to 
anything  else.  We  can  see  nothing  under  this  assign- 
ment to  warrant  us  in  reversing  the  judgment. 

Judgment  affirmed. 
Jas,  H.  Comles,  for  plaintiffs  in  error. 
A.  Hall  J  for  defendant. 


BRADLEY  et  al.  v.  McCALL. 

If  the  plaintiff  in  an  attachment  suit  before  a  justice  of  the  peace  recovers 
a  judgment  for  less  than  five  dollars,  it  does  not  follow  that  he  is  liable 
on  the  attachment  bond. 

In  an  attachment  suit  before  a  justice,  the  df^mand  cannot  be  leas  than  five 
dollars,  but  the  judgment  may. 

Error  to  Wapello  District  Court. 

Opinion  by  Kinney,  J.  This  was  an  action  brought  in 
the  district  court  of  Wapello  county,  upon  an  attachment 
bond  filed  before  a  justice  of  the  peace.  Judgment  was 
rendered  upon  the  bond,  and  the  case  having  been  trans- 
ferred to  this  court,  the  record  presents  the  following 
facts:  It  appears,  that  in  the  original  proceeding  before  the 
justice  of  the  I'cace,  an  attachment  was  sued  out  upon  the 


OTTUMWA,  JUNE,  1849.  215 

Bradley  v.  McCall. 

affidavit  of  Bradley,  alleging  that,  after  all  just  set-offs, 
McCall  was  indebted  to  him  more  than  $5.  Judgment 
upon  the  trial  was  rendered  in  favor  of  the  plaintiff  for 
only  70  cents ;  and  the  suit  in  the  district  court,  it 
seems,  was  instituted  by  McCall  against  Bradley  and 
Mason,  (the  latter  being  surety  upon  the  attachment  bond,) 
upon  the  ground  that  as  the  plaintiff  in  the  attachment 
did  not  recover  6-5,  he  was  entitled  to  damages  for  the 
suing  out  of  the  attachment.  This  appears  to  be  the 
only  question  in  the  case  entitled  to  consideration.  The 
1st  section  of  the  attachment  law,  page  339,  provides  that 
"  creditors  whose  demands  are  not  more  than  fifty  nor  less 
than  five  dollars,  may  sue  theii*  debtors  by  attachment 
before  a  justice  of  the  peace  in  certain  cases."  The  2d 
section  provides,  that  the  creditor  shall  execute  to  the 
debtor  a  bond  with  sufficient  security  in  a  penalty  ot 
$100,  conditioned  to  pay  the  debtor  all  damages  and 
costs  which  he  may  sustain  by  reason  of  the  issuing  of 
such  attachment,  if  the  creditor  fail  to  recover  juck/ment 
thereon,  and  if  such  judgment  be  recovered,  that  such 
creditor  will  pay  the  debtor  all  the  moneys  which  shall 
be  recovered  by  him,  from  any  property  levied  upon  and 
sold  under  such  attachment,  over  and  above  the  amount 
of  such  judgment  and  interests  and  costs  thereon.  This 
is  the  condition  of  the  bond  which  the  statute  requires  of 
the  creditor  for  the  safety  and  protection  of  the  debtor ; 
and  upon  a  breach  of  which  an  action  will  accrue  thereon 
to  the  defendant.  The  bond,  it  will  be  observed,  is  suscep- 
tible of  two  divisions  or  conditions,  and  upon  a  breach  of 
either,  the  creditor  will  become  liable  to  the  debtor.  1.  If 
the  creditor  does  not  obtain  judgment ;  and  2.  If  he  fail 
to  pay  over  the  surplus  money  arising  from  the  sale  of  the 
property  attached,  after  paying  his  own  demand  and  costs. 
Unless  there  is  a  breach  in  one  of  these  conditions,  we  are 
at  a  loss  to  know  how  the  creditor  would  become  liable  to 
the  debtor  upon  the  bond. 

The  suit  then  having  been  brought  upon  the  bond,  and 
the  debtor  havins;  recovered  as'ainst  the  creditor  and  his 


216  SUPREME  COURT  CASES, 

Bradley  v.  McCall. 

surety,  we  will  examine  the  bill  of  exceptions  and  record 
to  ascertain  tlie  basis  of  that  recovery. 

Upon  the  trial  in  the  district  court,  the  bond  was  intro- 
duced and  read  to  the  jury  as  the  foundation  of  the  action. 
The  plaintiff  below  then  introduced  the  transcript  of  the 
justice  of  the  peace,  which  showed  the  recovery  by  the 
defendant  of  70  cents.  These  items  of  evidence  were  ob- 
jected to  by  the  defendant,  but  permitted  to  go  to  the 
jury  by  the  court,  and  enabled  the  plaintiff  to  recover. 

The  court  charged  the  jury  that  the  defendant  Bradley, 
having  failed  to  recover  $5  on  his  attachment,  the  de- 
fendants were  liable  on  their  bond  if  any  damages  were 
proved  ;  for  $5,  being  the  least  sum  for  which  a  justice 
has  jurisdiction  by  attachment,  a  judgment  for  a  less 
sum  is  void  for  the  want  of  jurisdiction  in  the  justice. 
And  therefore,  as  no  judgment  was  ever  obtained  on  the 
attachment,  they  should  inquire  what  daipages,  if  any, 
were  sustained  by  the  plaintiff  by  reason  of  his  corn  being 
held  by  the  writ. 

The  court  in  this  charge  to  the  jury,  appears  to  have 
predicated  the  instructions  in  favor  of  the  plaintiff's 
right  of  recovery,  entirely  upon  the  fact  that  the  judgment 
recovered  before  the  justice  "was  under  $5.  This  instruc- 
tion we  think  erroneous.  It  will  be  observed,  that  the 
statute  requires  that  the  plaintiff's  demand  shall  be  at 
least  $5.  Can  this,  by  any  reasonable  construction  or 
legal  intendment,  refer  to  the  judgment  ? 

This  becomes  an  important  inquiry,  as  the  plaintiff 
recovered  uiDon  the  supposed  breach  of  the  bond.  As  the 
justice  had  no  power  to  render  the  judgment,  it  was  there- 
fore void,  and  placed  the  plaintiff  in  the  attachment  under 
the  same  liabilities  to  the  defendant  as  if  he  had  failed 
to  obtain  any  judgment  at  all.  By  the  express  provision 
of  the  statute,  the  justice  obtains  jurisdiction  when  the 
demand  of  the  creditor  properly  sworn  to,  &C.,  is  $5. 
Having  obtained  jurisdiction,  he  can  render  judgment, 
although  this  demand  may  be  reduced  by  an  investigation 
and  trial.     The  object  of  the  statute,  undoubtedly,  is  to 


OTTUMWA,  JUNE,  1849.  217 


Richards  v.  Marshman. 


guard  and  protect  debtors  from  a  violent  proceeding  by 
attachment,  when  the  demand  is  of  a  less  smn  than  $5. 
But  the  creditor,  when  he  makes  his  affidavit,  and  brings 
himself  within  the  purview  of  the  statute,  does  all  that 
is  required  of  him ;  and  if  for  the  want  of  testimony  to 
sustain  his  demand,  or  if  it  be  reduced  by  unexpected 
set-offs  to  a  sum  less  than  is  sworn  to,  we  think  the  jus- 
tice, having  legally  obtained  jurisdiction,  may  by  reason 
of  his  general  powers  render  a  judgment,  although  that 
judgment  should  fall  under  the  amount  sworn  to  be  due. 
As  the  statute  has  reference  only  to  the  demand,  and 
not  to  the  judgment,  and  as  under  the  law  defining  the 
powers  and  duties  of  justices  of  the  peace,  they  have 
power  to  render  judgments  in  any  sum  not  exceeding  $50, 
we  cannot  escape  the  conclusion  that,  in  cases  of  attach- 
ment, justices  of  the  peace  may  render  judgment  for  a 
less  sum  than  |5. 

As  the  instructions  upon  this  point  to  the  jury  were 
erroneous,  and  probably  formed  the  basis  of  the  recovery, 
it  will  be  unnecessary  to  notice  the  other  questions  pre- 
sented by  the  bill  of  exceptions  and  assignment  of  errors. 

Judgment  reversed. 

J.  H.  Cowles,  for  plaintiffs  in  error. 

S,  W,  Summers,  for  defendant. 


mCHAKDS  V.  MAESHMAK. 

Only  that  portion  of  a  contract  is  void  which  promises  more  interest  than 

is  authorized  by  the  interest  law  of  1839. 
On  a  note  made  under  that  law  to   draw  thirty-three  per  cent,  interest, 

twenty  per  cent,  interest  can  be  enforced. 
The   payee  of  a  note,  which  he  indorsed  to  the  holder,  is  a  competent 

witness  to  prove  usurious  interest. 

Vol.  it.  15 


218  SUPREME  COURT  CASES, 


Richards  v.  Marshmaa. 


Error  to  Van  Buren  District  Court, 

Opinion  hy  Greene,  J.  Assumpsit  on  four  promissory 
notes  made  by  the  defendant  and  others,  payable  to  Silas 
Tolman,  and  by  him  indorsed  and  delivered  to  Seth 
Richards.  The  notes  are  dated  September  27,  1842,  pay- 
able on  or  before  the  28th  day  of  June,  1843  ;  and  drawn 
to  bear  interest  at  the  rate  of  20  per  cent,  per  annum  after 
due  till  paid.     Pleas,  non  assumpsit  and  usury. 

On  the  trial,  there  was  evidence  given  tending  to 
sustain  the  plea  of-  usury,  and  to  show  that  Osse  Tolman, 
one  of  the  makers  of  the  notes,  borrowed  money  of  the 
plaintiff  and  gave  him  surety  notes  drawing  interest  at 
the  rate  of  33  per  cent.  ;  and  that  the  notes  sued  on  were 
given  for  the  principal  and  illegal  interest  of  those  notes, 
for  the  purpose  of  renewing  them. 

The  court  instructed  the  jury,  that  if  one  promises  to 
pay  another  a  sum  of  money  including  a  greater  rate  of 
interest  than  is  authorized  by  law,  such  promise  would  be 
void,  and  the  case  would  stand  as  if  no  such  promise  had 
been  made  by  the  parties  ;  but  the  law  would  then  imply 
a  promise  to  repay  the  consideration  with  six  per  cent, 
interest.  The  jury  accordingly  found  for  the  plaintiff,  on 
such  implied  promise. 

This  instruction  of  the  court  is  one  of  the  errors  urged. 

The  interest  act  of  1839,  p.  276,  was  in  force  at  the  time 
the  notes  in  question  were  given,  and  it  authorized  an 
agreement  in  writing  to  pay  interest  at  a  higher  rate  than 
6  per  cent. ;  but  providing  that,  in  no  event,  such  rate 
of  interest  shall  exceed  the  value  of  $20  for  the  forbear- 
ance of  $100  for  one  year.  The  penalty  provided  is, 
that  the  usurious  part  of  any  such  contract,  and  25 
per  cent,  interest  thereon,  shall  be  forfeited,  to  be  re- 
covered before  any  court  of  competent  jurisdiction,  and 
to  be  paid  into  the  treasur}'^  of  the  county  wherein  the 
same  may  be  i)rosecuted. 

It  is  not  pi'etended  that  the  present  proceeding  is  a  pro- 


OTTUMWA,  JUNE,  1849.  219 

Richards  r.  Marshman. 

icution  to  enforce  a  penalty  for  usury ;  but  it  is  insisted, 
lat  the  court  b^low  properly  charged  a  usurious  contract 
)  be  void  in  all  its  bearings.  Such  a  decision  would  be 
3rrect  in  England,  and  in  most  of  our  own  states,  where 
le  enactments  on  that  subject  declare  such  contracts 
surious  and  void.  But  the  validity  of  this  contract  must 
e  tested  by  the  usury  act  of  our  state,  which  was  in  force 
t  the  time  it  was  made.  It  does  not  pronounce  such  con- 
racts  void,  but  merely  forbids  a  greater  rate  of  interest 
lian  20  per  cent.,  and  provides  that  any  excess,  &c.,  shall 
e  forfeited  on  proper  prosecution.  We  regard  it  as  the 
lear  intention  of  the  law  to  leave  all  such  contracts  in 
Lil]  force  between  the  parties,  except  the  usurious  por- 
ion.  The  intention  of  the  contracting  parties  should  then 
e  enforced  so  far  as  lawfully  and  clearly  traceable  to 
he  full  extent  of  its  legal  limitation.  There  can  be  no 
uestion  but  that  there  was  an  intention  to  pay  at  least 
0  per  cent,  interest;  and  as  the  law  authorized  that  rate 
f  interest  by  agreement,  we  see  no  sound  reason  why  the 
ontract  should  not  be  enforced  to  that  extent ;  and  we 
re  therefore  of  the  ojDinion  that  the  court  below  erred  in 
eciding  that  the  entire  contract  is  void,  merely  because 
ne  portion  of  it  is  forbidden  by  law ;  although  that  por- 
ion  is  obviously  divisible,  and,  under  our  statute,  has  no 
mpairing  effect  upon  the  rest. 

The  legislative  intention  to  preserve  the  validity  of  all 
ucli  contracts,  except  the  usurious  portion  of  the  interest, 
5  fully  evinced  by  the  language  of  the  act,  by  the  forfeiture 
.esignated,  and  hj  the  manner  the  prevailing  legislation 
5  avoided,  which  declares  such  contracts  void. 

It  may  well  be  assumed  that  contracts  which  are  malum 
prohibitum  should  not  have  vitality  imparted  to  them  by 
ourts  of  justice,  and  that  such  tribunals  should  not  re- 
ognize  a  remedy  which  the  law  does  not  confer ;  but  we 
annot  perceive  that  this  familiar  rule  is  in  any  respect 
eparted  from  by  our  decision  in  this  case.  We  follow 
/Imt  we  believe  to  be  the  clear  intention  of  the  statute^ 
11  re^'ognizing  the  contract  as  valid,  so  far  as  its  legal 


220  SUPREME  COURT  CASES, 


Richards  v.  Marshman. 


features  and  the  legal  intention  of  tlie  parties  can  be 
plainly  traced.  In  doing  this,  we  believe  no  violence  is 
done  to  the  doctrine  held  in  The  Bank  of  the  U.  S.  v. 
Owens,  2  Peters,  527,  and  the  cases  therein  cited. 

In  Ohio,  under  a  statute  more  prohibitory  than  the  one 
under  which  the  notes  in  question  were  given,  it  has  been 
decided  that  usury  avoids  the  contract  only  to  the  extent 
of  the  illegal  interest.  McLean  v.  Lafayette  Bank,  3 
McLean,  587.  In  Lafayette  Ben.  So.  v.  Lewis,  7  Ohio, 
Part  L,  80,  it  was  held  that  when  a  contract  is  for  more 
than  6  per  cent.,  the  principal  may  be  recovered  with 
6  per  cent,  interest,  which  is  the  full  extent  authorized 
by  statute. 

2.  It  is  also  claimed  as  error,  that  the  court  overruled 
the  objection  of  the  plaintiff  below,  to  the  introduction 
of  Silas  Tolman,  the  payee  and  indorser  of  the  notes,  as  a 
witness  to  prove  the  defence  of  usury. 

As  the  cjuestion  is  not  raised,  we  will  not  advert  to 
the  immateriality  of  the  testimony  to  prove  usm*y,  which 
was  fully  established  by  the  face  of  the  notes  sued,  but 
briefly  state  our  decision  as  to  the  competency  of  the 
witness. 

The  governing  rule  is,  that  a  witness  is  competent,  un- 
less he  is  infamous  or  interested  in  the  event  of  the  suit. 
To  this  general  rule  policy  has  interposed  a  few  excep- 
tions, such  as  excluding  the  testimony  of  husband  and  wife 
for  or  against  the  other,  and  of  admitting  a  man  robbed, 
though  interested,  to  testify  against  others  for  the  robbery, 
and  the  like.  These  exceptions  are  admitted  to  preserve 
domestic  harmony,  and  public  security.  But  how  can 
these  motives,  or  even  the  appeal  to  commercial  conven- 
ience, be  applicable  to  the  exclusion  of  a  witness  whose 
name  ap'iears  upon  negotiable  paper? 

Were  we  to  follow  the  current  of  authority  emanating 
from  many  of  our  older  states,  as  cited  by  counsel  for 
the  plaintiff  in  error,  we  could  not  do  otherwise  than 
decide  that  the  indorser  is  not  a  competent  witness  to 
invalidate  a  note.     But  more  recent  decisions,  following 


OTTUMWA,  JUNE,  1849.  221 

Ricluirds  ?•.  Marshman. 

a  more  enliglitened  and  progressive  policy,  have  held  the 
contrary  doctrine. 

The  first  adjudged  cases  in  American  courts  appear  to 
have  been  predicated  upon  Walton  v.  Shelley^  1  T.  K, 
296,  made  a.d.  1786.  This  seems  to  be  the  first  reported 
case  in  England  upon  this  question,  and  is  founded  upon 
a  maxim  of  the  civil  law,  that  "  nemo  allegaris  suam  tur- 
pitudinem  est  audiendus^''  and  from  this  sprang  the  sup- 
posed policy,  that  no  party  who  has  by  his  signature  given 
credit  to  a  negotiable  instrument  should  be  permitted  to 
defeat  it  by  his  testimony.  That  inconvenience  and  even 
fraud  may  sometimes  result  from  such  a  practice  must 
be  conceded;  but  it  should  be  as  readily  conceded  that 
even  greater  inconvenience  and  fraud  may  be  practised  on 
parties  and  strangers,  by  getting  to  fraudulent  j)aper  the 
names  of  all  who  might  be  witnesses  to  the  transaction. 
No  rule  of  evidence  or  form  of  law  should  extend  such  a 
shield  to  the  guilty.  Under  this  view  of  public  policy, 
and  the  prevailing  rule  of  competency,  the  case  of  Walton 
V.  Shelley  y^2(S,  overruled  in  Jordainex.  Laskbrook,  7  T.  R., 
601 ;  and  the  payer,  who  was  also  indorser  of  the  bill, 
was  determined  a  competent  witness  to  prove  that  the 
bill  was  drawn  in  London  instead  of  Hamburgh,  as  it  pur- 
ported, and  was  tb.erefore  void  for  want  of  a  stamp.  And 
tliis  has  ever  since  prevailed  as  the  recognized  rule  in 
England.  Rich  v.  Topjmig,  Peak  K  P.  K,  224;  1  Esp. 
N.  P.  C,  176;  Brandy.  Acker man^  5  Esp.,  119;  Kent  y. 
Lowden,  1  Camp.,  177;  Peake  Ev.,4th  Ed.,  255;  2  Stark. 
Ev.,  298.  And  in  1  Phil.  Ev.,  5  Am.  Ed.,  43,  the  author, 
in  commenting  on  the  case  of  Walton  v.  Shelley^  remarks, 
that  it  appears  to  have  been  the  first  decision  in  support 
of  such  a  rule,  and  that  the  contrary  is  now  fully  estab- 
lished. The  promptness  with  which  the  English  courts 
have  overruled  their  erroneous  decision  in  that  case  is  truly 
commendable ;  but  we  are  constrained  to  observe,  that 
exalted  American  courts  have  not  pursued  the  same  enlight- 
ened policy.  Having  once  recognized  as  lasv  the  unsound 
doctrine  of  Walton  v.  Shelley^  they  appear  r,o  adhere  to  it 


222  SUPREME  COURT  CASES, 

Richards  v.  Marshman. 

witli  remarkable  pertinacity.  This  has  especially  charac- 
terized the  decisions  in  Massachnsetts  on  that  qno?tion. 
As  early  as  1807,  Walton  y.  Shelley  was  recognized  in  the 
case  of  Warner  v.  Merry,  3  Mass.,  27,  and  it  was  then 
decided,  that  a  party  to  a  negotiable  security  shall  not  be 
permitted  to  testify  that  at  the  time  lie  became  a  party  it 
was  void.  And  so  the  court  continued  to  decide  in  Parker 
V.  Lovejoy^  3  Mass.,  565;  Churchill  \.  Sutter,  4  ib.,  156; 
Manning  \.  Wheatland,  10  ib.,  502;  Butler  \.  D amen,  15 
ib.,  223  •  Packard  Y.  Richardson,  17  ib.,  122.  But  in  the 
case  oi Knight  Y.  Putnam,  3  Pick.,  184,  the  court  questions 
the  correctness  of  the  decision  in  the  case  of  Manning 
V.  WJieatland.  The  opinion  remarks,  that  "  the  autho- 
rity of  that  case  has  been  questioned,  and  the  objection 
to  the  doctrine  as  there  laid  down  is  entitled  to  great 
consideration.  The  witness  was  held  to  be  incompetent, 
not  because  he  was  interested,  but  on  the  ground  of  legal 
policy,  which  will  not  permit  one  who  has  transferred  a 
negotiable  security  as  valid  to  invalidate  it  by  his  testi- 
monj^"  And,  indeed,  the  principle  recognized  in  Fox  v. 
Whitneij,  16  Mass.,  118,  is  by  no  means  consistent  with 
former  decisions  in  that  state.  It  was  held  that  a  promisor 
on  the  note  as  surety,  the  paper  not  having  been  nego- 
tiated, was  a  competent  witness  to  prove  that  it  was  given 
for  a  usurious  consideration'. 

Afterward,  in  Van  Shaack  v.  Stafford,  12  Pick.,  565, 
the  maker  of  the  note,  being  released,  was  held  to  be  a 
competent  person  to  prove  usury  in  an  action  against  the 
payee.  And  still,  in  the  case  of  Thayer  v.  Crossman^  1 
Metcalf,  416,  the  old  doctrine  of  excluding  a  party  to  a 
note  was  again  confirmed,  but  under  greater  limits  and 
qualifications  than  had  been  previously  recognized.  Shaw, 
C.  J.,  in  an  able  opinion  and  general  review  of  authorities, 
considers  the  rule  settled  for  that  commonwealth,  by  a 
course  of  decisions  too  direct  and  uniform  to  be  drawn  in 
question,  but  concedes  the  necessity  of  curtailing  its  extent 
and  npplication.  Though  the  rule  of  Walt07i  v.  Shelley  • 
has  been  repeatedly  ctverruled  by  the  court  which  adopted 


I 


OTTUMWA,  JUNE,  1849.  223 

Richards  v.  Marshman. 

it,  and  its  error  triumphantly  exposed,  still  it  is  recognized 
in  Massacliusetts  as  in  force,  but  limited  in  its  application 
to  a  negotiable  security  indorsed  and  put  in  circulation 
in  the  usual  course  of  business,  and  as  not  applying  to 
notes  overdue  or  otherwise  dishonored.  And  this  rule 
appears  to  obtain  to  an  extent  more  or  less  limited  in 
Pennsylvania.  Bondw.  Cochrmi,  4  S.  &  B,.,  397  ;  Griffith 
V.  lliford,  1  Rawle,  196  ;   in  Maine,  Dreriny  v.  Lawlitel, 

4  Greenl.,  191 ;  Chandler  v.  Morton,  5  ib.,  374  ;  and  also 
by  tlie  federal  supreme  court,  Bk.  of  the  Metropolis  v. 
Jones,  8  Pet.,  12. 

But  in  New  York,  though  the  rule  was  adopted  in 
1802,  by  a  majority  of  the  court  in   Winton  v.  Saidler, 

3  John.  Cas.,  185,  it  was  soon  after  overruled,  and  has 
never  since  been  recognized  in  that  state.    Stafford  \.  Rice, 

5  Cow.,  23.  It  is  in  that  case  remarked,  yj^er  ^^c«^a^  c^^na??^, 
that  Winton  v.  Saidler  is  not  law,  not  having  been  acted 
upon  for  many  years,  and  having  been  repeatedly  over- 
ruled; and  that  under  the  later  decisions,  a  witness,  whose 
name  appears  upon  negotiable  paper,  may  be  received  to 
prove  usury  in  its  inception.  See  also  Bank  of  Uttica 
V.  Hillard,  5  Cow.,  153  ;  Williams  v.  Walbridye,  3  Wend., 
415. 

The  rule  of  Walton  v.  Shelley  has  also  been  rejected — 
in  Connecticut,  Toivnsend  v.  Bush,  1  Conn.,  260;  also  in 
Vermont,  Nichols  v.  Holyate,  2  Aik.,  140  ;  in  New  Jersey, 
Freeman  v,  Butlin,  2  Harrison,  1 92 ;  in  Maryland,  Riny^ 
yold  V.  Tyson,  3  Har.  &  Johns. ,  1 72 ;   Hunt  v.  Edward^ 

4  ?<$».,  283  ;  in  Virginia,  Taylor  v.  Beck,  3  Rand.,  316;  Cald- 
well \.  Mc Courtney,  2  Grat.,  187;  in  Kentucky,  Gorham 
V.  Carroll,  3  Litt.,  221 ;  in  N.  Carolina,  Guy  v.  Hall,  Mur- 
phy, 151  ;  in  S.  Carolina,  Knight  v.  Paccard,  3  McC,  71 ; 
in  Georgia,  Slack  v.  Moss,  Dudley,  161 ;  in  Tenn.,  Stump 
V.  Napier,  2  Yerg.,  35 ;  and  also  in  Alabama,  Manning  v. 
Manning,  8  Ala.,  138.  In  tliis  case,  Orniond,  J.,  observes, 
that  the  (h)ctrine  first  asserted  in  Walton  v.  Shelley,  has 
been  h)ng  exj)h)ded  in  Enghmd,  and  never  was  recognized 
by  that  court ;    but  th;it  tlic  opposite  o[)inion   had  been 


224  SUPREME  COURT  CASES, 


Scott  V.  Sweet. 


asserted  in  numerous  cases.     1  Stew.,  199  ;  9  Porter,  225, 
ib.,  406  ;  3  Ala.,  93;  5  ib.,  385. 

We  must  conclude,  then,  that  in  the  case  at  bar,  aside 
from  the  immaterial  character  of  the  evidence,  the  court 
below  very  properly  admitted  the  witness  Tolman  to  testify 
as  to  the  original  invalidity  of  the  notes;  but  as  the  jury 
were  improperly  instructed  as  to  the  effect  of  usury  upon 
the  contract,  the  judgment  must  be  reversed. 

Judofment  reversed. 


^£5' 


J.  H.  Cowles,  for  plaintiff  in  error. 
Wright  and  Knapp,  for  defendant. 


SCOTT  V.  SWEET  et  aU 

To  establish  a  plea  of  want  of  consideration,  parole  evidence  is  admissible, 
to  show  that  a  promissory  note  was  given  for  a  patent  right  to  make  fan- 
ning mills,  and  that  fanning  mills  made  after  the  model  of  the  right 
were  worthless. 

Error  to  Jefferson  District  Court. 

Opinion  by  Williams,  C.  J.  This  is  an  action  of  as- 
sumpsit, on  a  promissory  note  dated  October  18,  1845, 
drawn  by  C.  R.  Hitchcock  and  Job  C.  Sweet  in  favor  of 
William  Scott,  by  which  they,  or  either  of  them,  promised 
to  pay  said  Scott  or  order  the  sum  of  $48,  for  value 
received,  against  the  1st  day  of  March,  1846.  Suit 
was  brought  before  a  justice  of  the  peace.  The  plain- 
tiff sued  for  the  use  of  Theodore  D.  Porter.  Judgment 
was  obtained  by  the  plaintiff.  An  appeal  was  taken  to 
the  district  court,  the  cause  tried  there,  and  a  verdict  for 
the  plaintiff  and  judgment  thereon  for  $53.96,  with 
costs.  The  defendants  put  in  their  pleas,  that  the 
consideration   for  which  the  note   had    been  given   had 


OTTUMWA,  JUNE,  1849.  225 

Scott  V.  Sweet. 

wholly  failed ;  that  the  note  was  without  consideration 
when  made  and  delivered  to  Scott ;  and  also  payment 
in  full.  Issue  was  joined  between  the  parties.  The 
question  for  adjudication  here  is  presented  by  the  bill 
of  exceptions.  To  maintain  the  issue  on  their  part,  the 
defendants  offered  to  prove  by  parole  testimony,  that  the 
note  was  given  in  consideration  of  a  patent  right  to  make 
fanning  mills,  which  they  purchased  from  plaintiff,  and 
that  the  right  proved  to  be  worthless  because  the  mills 
would  not  work  beneficially.  To  the  introduction  of  this 
evidence  the  counsel  for  the  plaintiff  objected,  on  the 
ground  that  the  conveyance  of  the  right  could  only  be  in 
writing,  which  must  be  produced,  or  its  absence  accounted 
for,  and  that  it  could  not  be  proved  by  parole  testimony. 
The  court  sustained  the  objection  and  refused  to  let  the 
evidence  offered  go  to  the  jmy.  The  defendants  then 
offered  a  witness  to  prove  a  want  of  consideration  for  the 
note  on  which  this  suit  was  brought,  whose  evidence 
would  go  to  establish  the  following  facts  to  maintain  their 
part  of  the  issue,  viz. :  "  That  the  said  note  was  given  for 
a  supposed  right  to  make  fanning  mills,  and  that  the  said 
Scott  warranted  the  fanning  mills,  made  after  the  manner 
of  the  right  which  he  sold,  to  do  good  business,  and  also 
that  the  said  fanning  mills  did  not  do  good  business  and 
were  of  no  account."  All  of  which  parole  testimony  the 
court  refused  to  admit,  on  the  ground  that  the  written 
transfer  of  the  patent  right  must  be  produced,  or  its 
absence  accounted  for,  by  the  defendants.  The  defendants 
excepted  to  these  rulings  of  the  court,  all  of  which  appear 
in  due  form  of  record  in  the  case. 

The  only  question  for  adjudication  in  this  court,  is  as 
to  the  decision  of  the  district  court  in  refusing  to  admit 
the  parole  evidence  offered  by  the  defendants  as  above 
stated.  Upon  the  issue  between  the  parties,  we  think  it 
was  both  proper  and  material  that  the  evidence  as  offered 
should  have  been  suffered  to  go  to  the  jury.  In  this  pro- 
<:eeding,  notwithstanding  there  might  have  been  a  transfer 
in  writing  of  the  patent  right,   it  does  not    necessarily 


226  SUPREME  COURT  CASES, 

Scott  V.  Sweet. 

follow  that,  in  an  action  on  the  note,  parole  evidence  ol 
matters  arising  collaterally  out  of  that  transaction  may 
not  be  material  in  the  adjustment  of  the  rights  of  the 
parties,  and  properly  admissible  in  the  case.  Although 
a  written  document,  which  by  authority  of  law  or  private 
compact  is  constituted  the  authentic  and  proper  instru- 
ment of  evidence  by  a  general  and  inflexible  rule,  yet 
there  are  cases  where  the  mere  existence  of  written  evi- 
dence never  excludes  independent  parole  evidence  to  prove 
the  same  fact.     1  Starkie  on  Ev.,  p.  303. 

It  is  given  as  a  principle,  to  be  observed  in  relation  to 
the  exclusion  of  parole  evidence  of  a  contract,  that  in 
order  to  exclude  it,  proof  must  be  made  that  the  contract 
was  in  writing.  1  Starkie  on  Ev.,  505.  In  4  Esp.,  C.  13, 
referred  to  in  Starkie  above  cited,  in  a  note,  it  was  held 
that  "where  A  gave  a  warrant  of  attorney  to  secm-e  a 
joint  debt  to  B  and  C,  and  B  received  the  whole,  in  an 
action  by  C  to  recover  his  moiety,  A  may  be  called  to 
prove  the  payment  without  the  production  of  the  warrant 
of  attorney."  On  the  same  page  of  Starkie,  1st  vol.,  the 
case  of  Wood  v.  Morris,  12  East.,  p.  237,  where  it  was 
decided  that,  "  after  the  plaintiff  in  ejectment  had  given 
parole  testimony  in  evidence  of  the  tenancy,  the  evidence 
was  held  to  be  sufficient,  although  it  appeared  by  the  cross 
examination  of  his  witness  that  an  agreement  relative  to 
the  land  in  question  had  been  produced  upon  a  former 
trial  between  the  same  parties,  and  had  been  seen  in  the 
hands  of  the  phiintiff's  attorney  on  the  same  morning." 
But  the  defendants,  in  the  case  at  bar,  offered  to  prove 
that  the  mill,  for  the  right  to  which  they  gave  the  note 
upon  which  this  suit  was  brought,  was  warranted  by  the 
])laintiff  to  do  good  work,  and  that  the  same  was  worthless 
for  business,  and  the  court  rejected  the  evidence.  If  the 
contract  was  shown  to  be  in  writing,  we  think  it  was  com- 
2)etent  for  the  defendants  to  show  by  parole  evidence 
that  the  plaintiff,  independently  of  the  written  transfer, 
had  warranted  the  mill  to  work  well,  and  then  to  follow- 
that  showing  by  proof  that  it  was  worthless.     We  are  of 


OTTUMWA,  JUNE,  1849.  227 

Walsh  V.  Murphy. 

the  opinion  that,  as  the  case  is  presented,  the  district 
court  erred  in  rejecting  the  parole  evidence  offered  by  the 
defendants  upon  the  trial  below. 

Judgment  reversed, 

Charles  Negus  ^  for  plaintiff  in  error. 

Slayle  and  Achison,  for  defendant. 


WALSH  V.  MURPHY. 

An  attorney  to  whom  a  claim  was  intrusted  for  collection,  and  who  employed 

another  attorney  to  commence  suit  upon  it,  is  not  an  incompetent  witness. 
An  attorney  may  be  a  witness  for  his  client. 

Error  to  Van  Buren  District  Court. 

Opinion  hj  Kinney,  J.  This  was  an  action  of  assumpsit, 
commenced  by  attachment,  upon  an  account  of  about  $500. 
The  precipie  for  the  writ  was  filed  by  Hall  and  Cowgill, 
attorneys  for  plaintiff.  The  pleadings  in  the  case  were  all 
conducted  by  A.  Hall,  Esq. 

The  evidence,  as  contained  in  the  bill  of  exceptions,  shows 
that  the  plaintiff  introduced  as  a  witness  James  Cowgill, 
whose  name  appeared  on  the  precipie  as  attorney.  He 
stated  that  he  was  an  attorney  at  law  of  the  state  of  Mis- 
souri; that  about  the  1st  of  September,  1847,  the  account 
was  placed  in  his  hands  for  collection;  that  he  had  visited 
the  defendant,  and  subsequently  placed  the  claim  in  the 
hands  of  Mr  Hall ;  that  he  expected  to  be  paid  for  his 
services  in  looking  up  the  claim,  (fee.  Upon  the  request 
of  counsel  for  defendant,  the  com't  ruled  out  the  testimony 
of  Cowgill,  upon  the  ground  that  he  was  incompetent,  as 
there  was  'a.  prima  facie  liability  to  the  plaintiffs  for  neglect. 
Whereupon  the  plaintiffs  submitted  to  a  nonsuit.  Two 
questions  are  raised  in  the  argument  of  the  case. 


228  SUPREME  COURT  CASES, 

Walsh  V.  Murphy. 


1.  Was  the  witness  interested  in  such  a  manner  as 
would  render  him  incompetent  to  testify  ? 

2.  Can  an  attorney,  in  any  case,  be  a  witness  for  his 
client  ? 

Upon  the  first  point,  from  a  careful  examination  of  the 
matters  sworn  to  by  the  witness,  we  cannot  think  that  his 
interest  was  of  such  a  character  as  should  have  excluded 
his  testimony  from  the  jury.  The  rigid  rule,  as  formerly 
obtained  in  regard  to  the  incompetency  of  witnesses,  ap- 
pears to  be  relaxing  to  some  extent,  and  yielding  to  the  more 
reasonable  one  of  permitting  witnesses  who  were  once  re- 
garded as  incompetent  to  testify,  leaving  their  credibility 
with  the  jury.  Indeed,  some  of  the  law  writers  of  the 
day  are  discussing  with  seriousness  the  propriety  of  dis- 
solving all  distinction  between  competency  and  incom- 
petency, and  referring  the  testimony  of  witnesses,  with 
all  the  interest  and  objections  that  surround  it,  to  the 
consideration  of  the  jury,  for  them  to  place  such  reliance 
upon  as  it  deserves.  While  there  may  be  apparently 
many  good  reasons  in  support  of  this  position,  it  cannot 
be  expected  that  the  courts,  expounding  the  law  as  it  is, 
will  be  influenced  by  a  doctrine  so  diametrically  opposed 
to  the  well-established  land  marks  of  the  law. 

But  in  this  case,  we  are  asked  by  the  counsel  for  the 
defendant  in  error  to  lay  down  a  rule  which  will  prevent 
attorneys  from  testifying  in  behalf  of  their  clients,  and  in 
support  of  this,  we  are  referred  to  a  recent  decision  made  in 
Pennsylvania,  in  which  Judge  Lewis  delivers  an  opinion 
which  is  marked  for  its  elegance,  if  not  for  its  soundness. 
However  high  in  the  estimation  of  that  learned  judge 
the  members  of  the  profession  may  stand,  we  think  he 
pays  them  but  a  poor  compliment  by  intimating  that  their 
professional  zeal  for  the  success  of  their  clients  would 
compel  them  to  swerve  from  a  rigid  observance  of  truth  and 
veracity.  But  it  is  said  that  they  should  be  excluded  for 
their  own  protection.  A  character  above  reproach,  an 
integrity  of  purpose  that  cannot  be  questioned,  which  we 
are  happy  to  say  has  distinguished  the  profession  in  all 


OTTUMWA,  JUNE,  1849.  229 


Walsh  V.  Murphy. 


ages,  is  the  only  protection  that  any  person  requires  to  pre- 
vent suspicion  or  unjust  imputation.  While  it  sometimes 
becomes  a  matter  of  necessity  for  an  attorney  to  testify  in 
a  case  in  which  he  is  concerned,  to  prove  the  execution  of 
papers,  or,  as  in  this  case,  the  correctness  of  an  account, 
an  attorney  would  certainly  be  negligent  of  his  duty, 
were  he  to  remain  silent,  and  jiermit  his  client's  interest 
to  suffer,  allow  a  just  claim  to  be  defeated,  and  the  ends 
of  justice  subverted  by  reason  of  his  professional  position. 
While  we  say  this,  we  are  also  free  in  saying  that  no 
respectable  member  of  the  profession,  who  properly  appre- 
ciates his  position  in  society,  and  at  the  bar,  will  so  far 
forget  the  dignity  of  his  profession,  and  his  relation  to  the 
court,  as  to  become  the  willing  and  pliant  tool  in  the  hands 
of  his  client  in  the  capacity  of  witness.  In  this  case  the 
court  erred  by  excluding  the  testimony  of  Cowgill  upon 
the  ground  of  his  interest,  and  although  the  quest  icu  of 
the  competency  of  attorneys  to  testify  in  behalf  of  their 
clients  is  not  properly  raised  in  the  bill  of  exceptions,  yet 
as  the  practice  is  not  uniform  in  the  state  upon  that  sub- 
ject, and  as  we  have  been  requested  by  counsel  to  pass 
upon  the  question,  we  have  thought  proper  to  do  so.  The 
judgment  of  the  court  below  is  reversed,  and  a  trial  de 
novo  awarded. 

Judgment  reversed. 

A.  and  J.  C.  Hall,  for  plaintiffs  in  error. 

Wright  and  Knapp,  for  defendant. 


230  SUPREME  COURT  CASES, 

Bonney  v.  Van  Buren  Co. 


BONNEY  V.  VAN  BUREN  CO. 

Counties  are  liable  for  costs  in  criminal  cases  in  which  nolle  prosequi  are 
entered,  or  in  which  indictments  are  quashed,  or  demurrers  to  them  are 
sustained. 

Error  to  Van  Buren  District  Court. 

Opinion  bj  Greene,  J.  J.  H.  Boiiney  submitted  his 
account  to  '*'  the  board  of  commissioners  of  the  county  of 
Van  Buren,"  for  services  rendered  as  sheriff  and  clerk  of 
the  district  court  of  that  county  in  criminal  cases,  in 
which  nolle  prosequi  were  entered,  and  in  which  indict- 
ments were  quashed  or  demurrers  to  them  were  sustained. 
The  items  in  the  account  were  admitted  to  be  correct,  but 
the  board  of  commissioners  decided  that  the  county  was 
not  legally  liable  for  the  services,  and  therefore  refused  to 
audit  and  allow  the  claim.  Upon  an  agreed  case  in  the 
district  court  this  decision  was  affirmed. 

It  is  contended  that  the  court  erred  in  thus  deciding 
that  the  county  is  not  liable  for  costs  of  the  j)rosecution 
in  cases  disposed  of  by  nolle  prosequi,  by  motion  to  quash, 
or  by  demurrer  to  indictments.  The  various  enactments 
against  adjudging  costs  against  counties  in  criminal  pro- 
ceedings apply  exclusively  to  cases  of  acquittal.  Rev. 
Stat.,  p.  214,  provides,  that  "  the  county  commissioners 
may  allow  the  sheriff  and  clerk  of  the  district  court  any 
sum  not  exceeding  $30  per  annum,  for  services  in  criminal 
cases  where  the  party  is  acquitted."  In  ^he  United  States 
V.  Switzer,  Morris,  302,  it  was  decided  that  the  entering 
of  a  nolle  q^rosequi  is  not  an  acquittal,  and  that  a  judg- 
ment in  such  case  may  be  rendered  against  the  county 
for  costs.  As  none  of  the  services  in  the  case  at  bar 
appear  to  have  been  rendered  in  acquittal  cases,  we  con- 
sider the  county  liable  for  them.  AVe  cannot  feel  justi- 
fied in  extending  to  the  statute  a  construction  broader 
than  its  letter  imi)orts ;  nor  can  we  believe  it  to  have 
been  the  intention  of  the  legislature  to  deprive  county 


OTTUMWA,  JUNE,  1849.  231 

Bradley  v.  Kennedy. 

officers  of  just  and  adequate  compensation  for  services 
required  of  them  by  law,  when  no  such  intention  is 
explicitly  set  forth  in  the  statute. 


Judgment  reversed. 


A,  Hall,  for  plaintiff  in  error. 
H,  M.  Shelby  J  for  defendant. 


BRADLEY  v.  KENNEDY. 

Where  the  declaration  in  slander  contains  several  counts,  two  of  which 
charge  the  speaking  of  words  at  different  times,  and  a  general  verdict  ifl 
rendered,  the  jndtrment  will  not  be  reversed. 

It  is  the  exclusive  province  of  a  jury  to  decide  the  facts  in  a  case. 

It  is  not  error  to  exclude  immaterial  testimony. 

To  sustain  the  plea  of  justification  to  an  action  of  slander,  the  testimony  of 
more  than  one  witness,  or  of  one  witness,  and  strong  corroborating  cir- 
cumstances, are  necessary. 

Error  to  Wapello  District  Court. 

Opinion  by  Wili  iams,  C.  J.  James  Kennedy  brought 
his  action  for  slanderous  words  against  Thomas  W.  Bradley, 
in  the  district  court  of  Wapello  county.  The  declaration 
of  the  plaintiff  sets  forth,  in  the  proper  form  of  law,  words 
alleged  therein  to  have  been  spoken  by  the  defendant  of 
and  concerning  the  plaintiff",  imputing  to  him,  and  charging 
him  with,  the  crime  of  perjury.  There  are  several  counts 
contained  in  the  declaration.  The  words  laid  in  each  are 
substantially  the  same,  and  they  are  clearly  actionable. 
The  defendant  filed  his  plea  of  not  guilty  and  justifica- 
tion. The  cause  was  tried  by  a  jury,  and  a  verdict  and 
judgment  rendered  in  favor  of  the  plaintiff  for  |100 
damages. 

The  first  error  assigned  is,  that  "  the  district  court 
erred  in  overruling  the  motion  to  airest  the  judgment,  on 


232  SUPREME  COURT  CASES, 

Bradley  v.  Kennedy. 

the  verdict  of  tlie  jury."  In  support  of  this  motion,  it 
was  alleged,  in  tlie  court  below,  that  the  declaration  con- 
tains several  counts,  two  of  which  charge  the  speaking  of 
different  words  at  different  times,  whereas  the  verdict  of 
the  jury  is  general. 

It  is  true  that  the  declaration  is  made  up  of  several 
counts,  and  that  the  words,  in  two  of  the  counts,  are  not 
precisely  the  same,  and  are  laid  to  have  been  spoken  at 
different  times.  But,  substantially,  the  words  laid  in 
them  charge  the  same  crime  upon  the  plaintiff  below, 
being  that  of  wilful  and  corrupt  perjury,  in  such  a  manner 
as  to  render  them  in  law  actionable.  The  fact  that  they 
are  laid  as  having  been  spoken  at  different  times  furnishes 
no  ground  for  an  available  objection.  The  words  charge 
the  same  crime,  and  the  finding  of  the  jury  was,  doubt- 
less, based  upon  the  conclusion  that  the  evidence  adduced 
satisfactorily  proved  the  allegations  contained  in  all  the 
counts.  The  counts  do  not  show  a  charge  of  more  than 
one  crime.  Besides,  the  pleas  of  the  defendant,  being 
the  general  issue  and  justification  specially  pleaded, 
apply  to  all  the  counts  in  the  declaration  alike.  We 
find  no  legal  objection  to  the  verdict  on  this  score.  The 
court,  therefore,  did  not  err  in  overruling  the  motion  to 
arrest  the  judgment. 

The  second  error  assigned  is,  that  the  "  district  court 
erred  in  this,  that  the  judge  instructed  the  jmy  as  to  the 
facts  of  the  case,  and  not  as  to  the  law  alone." 

Tliis  assignment  has  not  been  pressed  upon  the  atten- 
tion of  this  court  with  much  apparent  confidence  by  the 
counsel  for  the  plaintiff  in  error  ;  but,  nevertheless,  being 
presented  for  adjudication,  it  devolves  upon  us  to  examine 
whether  it  be  well  founded. 

Our  legislature,  by  positive  and  prohibitory  enactment, 
have  confined  the  judges  of  om'  district  courts  to  instruc- 
tion in  the  law  alone,  and  made  it  the  exclusive  province 
of  the  jury,  unaided  and  unadvised  by  the  court,  to  decide 
as  to  the  facts  in  question,  adduced  in  evidence  on  the 
trial.     After  careful  and  full  examination  of  the  bill  of 


OTTUMWA,  JUNE,  1849.  233 

Bradley  v.  Kennedy. 

exceptions  in  this  case,  we  think  that  the  judge  who  tried 
the  cause  below  has  not  overstepped  the  limits  prescribed 
by  the  legislature  in  the  instructions  given. 

The  third  assignment  of  error  is,  that  "  the  judge  of 
the  district  court  erred  in  excluding  the  testimony  of 
witnesses  in  respect  to  the  declarations  of  the  plaintiff 
below,  that  lie  was  prosecuting  the  suit  to  break  up 
defendant,  who  felt  too  large,  and  he  was  determined  to 
bring  him  down,  and  that  his  father-in-law  had  furnished 
him  (the  plaintiff)  with  $500  to  carry  on  the  suit."  The 
question  here  presented  is  this,  viz.: — Was  this  evi- 
dence material  in  this  case,  upon  the  issue  joined  between 
the  parties  ?  We  are  unable  to  see  its  materiality.  The 
defendant,  after  pleading  the  general  issue,  pleaded  spe- 
cially justification.  He  first  put  the  plaintiff  to  the  proof 
of  the  words,  as  alleged  in  the  declaration  to  have  been 
spoken ;  and  then,  in  the  event  of  their  being  proved, 
for  a  defence  to  the  plaintiffs  action,  by  his  special  plea, 
stood  forth  before  the  court  and  jury,  and  justified  the 
speaking  of  the  words,  by  affirming  and  contending  that 
they  were  true.  We  cannot  see  what  material  bearing 
the  evidence  oftered  could  have  on  the  case  so  presented  ; 
as  the  case  stood  upon  the  issue  thus  joined,  and  at  this 
point  ia  the  proceeding,  the  defendant  was  exclusively 
put  upon  the  proof  of  his  plea  of  justification.  Had  he 
merely  put  in  the  plea  of  the  general  issue,  denying 
only  the  speaking  of  the  words,  then  the  motive  of  the 
plaintiff  in  bringing  the  suit  might  with  more  pro- 
priety have  been  assailed.  But  the  evidence  offered, 
fairly  construed,  could  establish  no  more  than  that  the 
plaintiff  was  not  without  the  means  of  prosecuting  his 
suit,  which  had  been  already  instituted  ;  and  that  the 
defendant  had  assumed  high  ground  in  charging  the 
crime  of  perjury  upon  him,  and  that  the  effect  of  the 
j)roceeding  at  law,  then  pending  between  them,  would  be 
to  break  him  up.  We  think  that  the  judge  of  the  dis- 
trict court  did  not  err  in  rejecting  the  testimony  so  offered 
as  irrelevant. 

Vol.  IL  16 


234  SUPREME  COURT  CASES 

Bradley  v.  Kennedy. 

The  fourtli  and  last  error  assigned  is,  that  there  was 
error  in  the  instructions  of  the  judge,  "  that  the  testimony 
of  more  than  one  witness  was  necessary  to  sustain  the 
defendant's  plea  of  justification." 

The  judge  instructed  the  jury  that  the  defendant  was 
bound  to  make  out  his  plea  of  justification  affirmatively 
in  such  a  manner  as  to  sustain  the  charge  of  perjury, 
which  he,  by  his  plea,  made  against  the  plaintiff.  To  do 
this  legally,  his  instruction  to  the  jury  required  him  to 
prove  by  more  than  one  witness,  or  by  one  witness  and 
corroborating  circumstances,  which  would,  to  the  satisfac- 
tion of  the  jury,  give  the  preponderance  of  truth  to  the  evi- 
dence of  that  witness,  against  the  evidence  which  had  been 
given  upon  oath  by  the  plaintiff  on  the  trial  or  trials, 
wherein  he  had  accused  him  of  swearing  falsely,  as  alleged 
in  the  declaration  of  plaintiff ;  that  thus  the  equilibrium 
produced  by  the  oath  of  one  man  against  that  of  another,  in 
relation  to  the  same  subject  matter,  would  be  destroyed  by 
the  weight  of  reasonable  and  truthful  cu'cumstances,  and 
the  question  at  issue  be  legally  decided.  This  is  the  sub- 
stance of  the  instruction  given  by  the  judge  on  this  point. 
But  a  brief  examination  of  this  question  is  necessary  to 
show  that  the  instruction  given  by  the  judge  to  the  jury  on 
this  point  was  in  accordance  with  sound  law.  The  grave 
and  heinous  crime  of  perjury  is  charged  by  the  defendant 
against  the  plaintiff.  On  a  prosecution  for  that  crime,  by 
the  laws  of  our  country  the  testimony  of  more  than  one 
witness,  or  one  witness  and  strong  corroborating  circum- 
stantial evidence,  are  required  to  substantiate  the  charge 
and  procure  a  conviction.  The  accusation  made  by  the 
defendant  against  the  jjlaintiff,  as  laid  in  the  declaration, 
and  which  he  insists  by  his  plea  is  true,  is  wilful  and  cor- 
rupt perjury  in  a  criminal  and  legal  sense — which,  if  true, 
and  established  legally,  would  subject  the  plaintiff  to  the 
severe  penalty  of  a  crime,  and  render  him  infamous.  The 
charge  made  by  defendant  was  perjury  in  its  legal  sense. 
By  the  soundest  dictates  of  reason  and  law  then,  as  the 
charge  made  by  him  against  the  plaintiff  involved  crimi- 


I 


OTTUMWA,  JUKE,  1849.  235 


Pierson  v.  Baird. 


nal  guilt  under  the  law  of  our  land,  upon  the  issues  joined 
in  this  case,  he  was  justly  and  legally  required  by  the 
court  below  to  make  good  his  accusation  by  such  evidence 
as  is  required  legally  to  establish  a  conviction  of  the 
offence  charged.  To  establish  and  inculcate  any  other  doc- 
trine than  this,  would  release  the  defendant  from  the  re- 
sponsibility he  assumed  by  speaking  the  words  as  laid  in 
the  declaration,  and  leave  the  plaintiff  without  redress 
commensm-ate  to  the  wrong  and  injury  sustained  by  him. 
Whilst  the  accusation  made  against  him  would  be  perjury 
in  its  full,  legal,  and  infamous  sense,  the  defendant  would 
excuse  himself  by  evidence  which  could  not  establish  the 
commission  of  any  such  crime.  In  a  case  like  this,  where 
the  defendant  undertakes  to  justify,  it  is  just,  as  well  as 
legal,  that  he  should  be  required  to  make  good  his  plea 
affirmatively,  fully  and  legally. 

We  find  no  error  in  the  proceedings  of  the  court  below. 

Judgment  affirmed. 
J.  H.  Cowles,  for  plaintiff  in  error. 
Wright  and  Knapp,  for  defendant. 


PIEESON  V.  BAIRD. 

By  an  act  approved  January  15,  1849,  all  instructions  from  district  Judges 

to  petit  juries  are  to  be  given  in  writing. 
That  law  took  effect,  by  publication  in  newspapers,  on  31st  January,  1849. 
Courts  siiould  know  ex  officio  at  what  time  lavs  take  effect. 

Error  to  Van  Buren  District  Court. 

Opinion  bij  Kinney,  J.  The  only  question  raised  in 
this  case  by  the  bill  of  exception  is,  Did  the  court  err  by 
giving  oral  instructions  to  the  jury?  The  cause  was  sub- 
mitted to  the  jury  upon  the  oral  instructions  of  the  coart. 


236  SUPREME  COURT  CASES, 


Pierson  v.  Baird. 


on  the  21st  day  of  February,  1849.  It  appears  irom 
the  bill  of  exceptions  that  the  court  at  tlie  time  was 
not  aware  that  a  law  had  been  recently  passed  requiring 
instructions  to  petit  juries  to  be  in  writing,  and  prohibit- 
ing oral  instructions,  and  proceeded  to  give  the  instruc- 
tions in  the  usual  manner,  to  which  the  counsel  for  the 
plaintiff  in  error  excepted.  The  27th  section  of  the  4th 
Art.  of  the  constitution  of  Iowa  provides,  "  that  no  law  of 
the  general  assembly  of  a  public  nature  shall  take  effect 
until  the  same  shall  be  published  and  circulated  in  the 
several  counties  by  authority.  If  the  general  assembly 
shall  deem  any  law  of  immediate  importance,  they  may 
provide  that  the  same  shall  take  effect  by  publication  in 
newspapers  in  the  state." 

Upon  the  15th  day  of  January,  1849,  the  legislature 
passed  a  law  requiring  the  judges  of  the  district  courts 
to  instruct  the  petit  juries  in  writing.  The  act  provides, 
that  it  shall  take  effect  from  and  after  its  publication  in 
the  Capital  Reporter  and  Iowa  Repicblican.  From  a  note 
appended  to  the  act,  it  appears  that  it  was  published 
in  one  of  these  papers  on  the  24th  of  January,  and  in  the 
other  on  the  31st. 

This  law  was  of  a  public  nature.  The  general  assembly, 
deeming  it  of  immediate  importance,  had  the  right  under 
the  constitution  to  order  it  to  be  published  in  newspapers 
in  the  state,  and  when  so  published  the  constitution  pro- 
vides that  it  shall  take  effect.  Courts  are  bound  ex  officio 
to  take  judicial  notice  of  the  publication,  in  this  way,  of 
all  laws  of  a  public  nature.  The  time  fixed  by  the  con- 
stitution for  them  to  take  effect  is  by  publication,  and 
when  so  published,  they  become  the  laws  of  the  land. 
This  unrestricted  provision  of  the  constitution,  if  resorted 
to  by  the  general  assembly,  may  and  often  will  produce 
injustice  and  oppression,  which  it  is  not  within  the  power 
of  the  courts  to  remedy  or  prevent ;  and  hence  such  laws 
as  would  be  injurious  in  their  tendency,  by  reason  of  their 
not  being  circulated  and  known,  ought  not  to  take  effect 
in  this  constitutional  manner.     Nevertheless  the  o:eneral 


I 


OTTUMWA,  JUXE,  1849.  237 


Roerers  v.  Alexander. 


assembly  have  the  right  to  give  their  acts  vitality  and 
force  by  newspaper  publications,  however  much  to  be  de- 
precated, or  oppressive  in  their  consequences.  As  the 
constitution  has  fixed  the  time  for  these  laws  to  take  effect, 
it  is  not  within  the  power  of  the  courts  to  prescribe  the 
time  which,  in  theii-  opinion,  would  be  sufficient  for  these 
newspapers  to  be  circulated,  and  through  them  the  laws 
generally  known. 

In  the  case  before  us,  the  act  had  been  published  about 
one  month,  and  although  the  court  was  not  aware  of  its 
passage,  it  erred,  and  the  case  must  be  reversed. 

Judgment  reversed. 

A,  Hall,  for  plaintiff  in  error. 
Wright  and  Knapp,  for  defendant. 


ROGERS  V.  ALEXANDER. 

Where  two  motions  are  pending  at  the  same  time — one  by  defendant,  to  affirm 
for  the  want  of  notice,  and  the  other  by  plaintiff,  for  leave  to  withdraw 
the  writ  of  error — the  supreme  court  will,  at  discretion,  give  preference 
to  that  motion  which  the  nature  and  justice  of  the  case  may  require. 

Error  to  Van  Buren  District  Court. 

Opinion  by  Greene,  J.  This  case  comes  before  us  on 
two  motions — one  to  affirm  the  judgment  for  want  of  notice 
of  suing  out  the  writ  of  error,  and  the  other  by  plaintiff 
in  error,  for  leave  to  withdraw  the  writ  and  papers  without 
prejudice. 

The  question  arises.  To  which  of  these  motions  shall  we 
give  precedence?  This  is  a  matter  not  regulated  by  rule 
or  practice,  and  is  consequently  confined  to  the  discretion 
of  the  court,  to  be  determined  by  the  circumstances  of 
each  particular  case. 


238  SUPREME  COURT  CASES, 


Jefferson  Co.  v.  Savory, 


That  clause  of  the  statute  requu-ing  fifteen  clays'  notice, 
and  in  default  thereof,  an  affirmance  of  the  judgment  un- 
less good  cause  be  shown  for  the  failure,  is  an  imperative 
rule  upon  the  court,  which  cannot  "always  conform  to  the 
rights  of  parties.  The  stringent,  inflexible  character  of 
the  rule  must  necessarily  work  a  hardship  in  some  in- 
stances, unless  counteracted  in  justifiable  cases  by  an  in- 
terposing motion,  such  as  an  application  to  withdraw  the 
writ  without  prejudice.  This  application,  however,  can 
only  receive  priority  over  a  motion  to  affirm  for  want  of 
notice,  in  peculiar  cases  in  which  the  rights  of  a  party 
might  be  injuriously  affected  by  its  refusal.  And  in  this 
light  we  recognize  the  present  case.  The  appealing  party 
appears  to  have  acted  in  good  faith,  without  motive  to  re- 
tard the  operations  of  justice,  and  at  least  with  grounds 
of  defence  upon  which  a  question  may  properly  be  raised. 
We  therefore  feel  it  our  duty  to  grant  the  motion  to  with- 
draw the  writ  and  papers  in  this  case,  without  prejudice. 

Motion  granted. 
A,  Hall,  for  plaintiff  in  error, 
J^  M,  Shelby,  for  defendant. 


JEFFERSON  CO.  v.  SAVORY. 

When  a  note  is  so  written  that  it  is  impossible  to  tell  whether  it  is  dat«d 
Jan.  or  Jun.,  parole  evidence  may  be  admitted  to  determine  the  true  date; 
and  the  fact  should  be  referred  to  the  jury  for  determination. 

Error  to  Jefferson  District  Court. 

Opinion  by  Williams,  C.  J.  The  plaintiff's  action  is 
brought  on  a  promissory  note  calling  for  $68.95,  drawn 
by  the  defendants  here,  and  Samuel  Shuffleton,  who  died 
before  the  commencement  of  this  suit.     The  declaration 


OTTUMWA,  JUNE,  1849.  239 

Jeffersoa  Co.  v.  Savory. 

of  the  plaintiff  contains  a  special  count  on  tlie  note,  arid 
therein  alleges  that  the  defendants,  with  the  said  Shnffle- 
ton,  "on  the  ninth  day  of  June,  1841,  &c.,  made  their 
promissory  note  in  writing,"  &c.  To  this  special  count 
the  common  counts  in  assumpsit  are  added,  in  the  first  of 
which  an  exact  coj)y  of  the  note  is  given.  Issue  having 
been  joined  by  the  parties,  at  the  March  term  of  the  dis- 
trict court  the  cause  was  tried,  and  judgment  of  nonsuit 
entered  against  the  plaintiff. 

The  plaintiff  in  the  court  below  complains  here,  that 
the  judge  of  that  court  improperly  refused  to  allow  him 
to  read  in  evidence,  on  the  trial  before  the  jury,  a  note 
signed  by  the  defendants  and  said  Shuffileton,  to  sustain 
his  action.     This  is  the  only  error  assigned. 

The  question  adjudicated  by  the  court  below,  and  pre- 
sented here  by  the  bill  of  exceptions,  arises  from  an  alle- 
gation of  variance  between  the  instrument  of  writing  set 
forth  in  the  plaintiff's  declaration  and  the  note  offered  in 
evidence  to  the  jury  to  maintain  the  plaintiff's  action. 

The  facts  contained  in  the  bill  of  exceptions  are  in 
substance  as  follows:  "The  note  oflered  as  evidence  to 
the  jury  on  part  of  the  plantiff  was  objected  to  by  the  de- 
fendants, on  the  ground  of  variance.  The  date  of  the  note 
declared  on  was  June  9,  1841,  and  the  note  offered  as 
evidence  was  identical  with  that  described  in  the  declara- 
tion in  all  material  points,  except  the  name  of  the  month, 
and  the  judge,  in  the  language  of  the  bill  of  exceptions, 
certifies  that  the  "  date  of  the  note  produced  was  so 
wi-itten  that  it  would  read  equally  well  either  "  Jan.'"'  or 
"  Jun.^^''  and  from  the  face  of  the  note  the  court  could  not 
say  which  it  was."  The  court  then  permitted  the  plaintiff 
to  show  by  parole  evidence  when  the  note  was  in  fact 
made,  and  the  plaintift"  gave  evidence  that  it  was  made  in 
January.  The  plaintiff  further  proposed  to  prove  that  the 
word  was  June^  and  that  it  was  Avritten  by  Shuffleton  in 
his  usual  manner  of  writing  the  word  June,  but  the  court 
refused  to  hear  the  evidence. 

The   plaintiff  then    insisted   that   the   note   should   be 


240  SUPREME  COURT  CASES, 

Jefferson  Co.  v.  Savory. 

allowed  to  go  to  the  jury  for  adjudication  as  to  the  question 
of  the  date,  which  was  refused  by  the  court,  until  evidence 
should  be  adduced  to  the  court,  proving*  that  it  was  a  June 
note.  The  note  was  rejected  by  the  court,  and  the  plaintiff 
nonsuited. 

The  bill  of  exceptions  presents  rather  a  peculiar  state 
of  facts.  It  is  distinctly  stated,  that  by  inspection  of  the 
note  ofiered  in  evidence,  it  was  not  in  the  i:)ower  of  the 
court  to  decide  what  the  name  of  the  month,  as  written, 
was  ;  whether  it  should  read  June  or  January.  For  the 
ascertainment  of  this  matter  resort  was  had  to  parole 
evidence  by  the  permission  of  the  court.  Having  done  so, 
and  having  heard  some  testimony  on  the  subject  with  a 
view  to  establish  in  a  satisfactory  manner  to  the  mind  of 
the  court  the  true  date  of  the  note,  we  are  at  a  loss  to  un- 
derstand why  the  plaintiff  was  not  suffered  to  proceed,  as 
offered  by  him,  to  give  evidence  of  the  date  as  written  in 
the  note.  The  same  rule  which  would  warrant  the  hear- 
ing of  a  part  of  his  evidence  would  admit  it  all ;  and  as 
the  proposition  was  to  prove  that  the  word  written  in  the 
note  was  "  June,''''  we  think  the  establishment  of  that  fact 
in  the  mind  of  the  court  would  have  been  quite  likely  to 
dispel  the  doubt  existing  there,  and  might  have  settled  the 
question. 

But  we  are  of  \\\q,  opinion  that  the  court  erred  in 
refusing  to  let  the  note  go  to  the  jury  for  the  purpose  of 
ascertaining  the  date.  By  the  bill  of  exceptions,  it 
appears  clearly  that,  from  the  face  of  the  note  offered  in 
evidence,  the  court  was  unable  to  decide  whether  the  word 
written  for  the  name  of  the  month  should  be  taken  for 
June  or  January,  but  might  be  taken  for  either  with  equal 
propriety.  In  such  a  case,  the  party  objecting  to  the 
evidence,  and  asking  the  interposition  of  the  rule  of  law 
which  requires  the  proof  offered  to  correspond  with  the 
allegations  in  the  declaration,  and  who  claimed  the  benefit 
of  the  objection,  should  have  made  out  the  existence  of 
that  variance  to  the  satisfaction  of  the  court,  from  an 
examination  of  the  instrument  itself.    Unlegs  the  vai'iance 


OTTUMWA,  JUNE,  1849.  241 

Marshall  v.  Marshall. 

was  manifest  and  satisfactorily  apparent  to  the  mind  of 
the  court,  the  note  should  have  been  suifered  to  go  to  the 
jury,  there  to  pass  through  that  ordeal  instituted  in  our 
country  for  the  adjustment  of  controverted  facts  upon  the 
issues  made  up  by  the  parties. 

This  we  think  is  the  safer  and  better  rule  in  cases  like 
this.  Where  the  court  cannot  decide,  the  instrument 
should  be  allowed  to  go  in  evidence  to  the  jury,  submit- 
ting this  question  of  fact,  with  all  such  other  facts  as  maj 
arise  in  the  cause,  to  their  verdict,  under  the  instructior 
of  the  court  as  to  the  law. 

Judgment  reversed. 

C.  Negus  J  for  plaintiff  in  error. 

E,  DoroYiy  for  defendants. 


MARSHALL  tt  al.  v.  MARSHALL. 

In  proceedings  in  chancery  against  non-residents,  a  brief  statement  of 
the  object  and  prayer  of  the  petition  must  be  published  for  six  weeks 
successively,  in  some  newspaper  printed  in  the  county  where  the  petition 
or  bill  is  tiled,  &c. 

The  publication  is,  in  contemplation  of  law,  a  service  of  process  upon  the 
defendants,  and  unless  made  as  required  by  statute,  no  service  is  obtained, 
and  the  proceedings  of  the  court  are  coram  non  judice,  and  void. 

Error  to  Van  Buren  District  Court. 

Opinion  by  Kinney,  J.  This  was  a  proceeding  under 
the  statute,  by  the  defendant  in  error,  for  partition 
against  the  plaintiff  and  others,  and  minor  heirs,  who 
were  non-residents. 

Publication  was  ordered  by  the  court  as  against  the 
non-residents.  A  guardian  ad  litem  was  appointed  for 
the  infant  heirs,  and  the  case  luvving  been  heard,  and  it 


242  SUPREME  COURT  CASES, 

Marshall  v.  Marshall. 

appearing  to  tlie  court  that  publication  had  been  made 
acording  to  law,  it  was  ordered  that  partition  be  made  of  the 
premises,  which  was  done  by  the  commissioners  appointed 
for  that  purpose,  and  their  proceedings  duly  confirmed. 

The  case  is  brought  to  this  court  upon  writ  of  error, 
and  a  reversal  of  the  order  of  partition  is  asked  upon 
the  ground  that  the  publication  was  not  according  to 
law. 

By  the  first  section  of  an  act  relating  to  petitions  and 
proceedings  in  chancery,  Iowa  Laws,  1844,  p.  49,  it  is 
provided,  that  in  proceedings  against  non-residents,  a 
brief  statement  of  the  object  and  prayer  of  the  petition 
shall  be  published  for  six  weeks  successively,  in  some 
newspaper  printed  in  the  county  where  the  petition  or  bill 
is  filed,  &c.  By  an  inspection  of  the  record  in  this  case, 
the  publication  as  sworn  to  by  the  publisher  only  appears 
to  have  been  continued  for  four  weeks,  and  this  is  the 
error  complained  of  by  the  plaintiff.  This  error  is  a  fatal 
one,  and  the  decree  of  the  court  must  be  reversed.  If 
two  weeks  of  the  publication  less  than  required  by  law 
could  be  dispensed  with,  the  entire  publication  could,  upon 
the  same  principle,  be  avoided ;  and  therefore  the  non- 
resident defendants  be  proceeded  against,  their  interests 
affected,  and  their  rights  concluded,  without  ever  having 
had  a  day  in  court. 

This  publication  is  in  contemplation  of  law  a  service  of 
process  upon  the  defendants,  and  unless  made  as  required 
by  the  statute,  no  service  is  obtained,  and  the  proceedings 
of  the  court  under  it  as  regards  them  are  coram  nonjudicc^ 
and  void. 

But  it  is  urged  here  by  counsel,  tluit  the  plaintilf  in  error 
was  served  with  personal  service,  and  cannot  com})lain 
of  the  irregularity  of  the  pi'oceedings  ;  that  they  are  only 
void  as  against  the  non-resident  defendants,  if  void  at  all. 
This  position  is  incorrect  and  unsound.  It  appears  from 
the  report  of  the  commissioners  of  partition  that  a  por- 
tion of  the  land  was  allotted  to  James  Marshall,  the  plain- 
tiff in  error,  and  as  this  is  the  foundation  of  his  title,  it 


OTTUMWA,  JUNE,  1849.  243 

Gordon  v.  Mounts. 

becomes  a  matter  of  vital  importance  to  him  that  the 
proceediDgs  in  partition,  from  which  he  derives  his  title^ 
should  have  been  according  to  law.  The  plaintifT  is  not 
excluded  from  raising  the  objection  presented  in  the  as- 
signment of  errors. 

Judgment  reversed. 


*o' 


J.  H,  Cowles,  for  plaintiffs  in  error. 
Wright  and  Knappy  for  defendant. 


»♦»•<- 


GORDON  V.  MOUNTS. 

The  statute  of  limitations  approved  February  15, 1843,  cannot  be  pleaded  in 
bar  to  an  action  of  debt  within  six  years  after  the  act  took  effect. 

Error  to  Polk  District  Court. 

Opinion  hy  Greene,  J.  This  was  an  action  of  debt  on 
a  writing  obligatory  under  seal.  In  the  court  below  the 
defendant  pleaded  the  statute  of  limitations,  to  which  the 
plaintiff  demurred,  and  the  court  overruled  the  demurrer. 

This  ruling  of  the  court  is  assigned  as  error,  and  is  the 
only  question  raised  in  the  case.  Under  former  decisions 
of  this  court,  which  we  see  no  sufficient  reasou  now  to 
disturb,  the  statute  of  limitations  cannot  be  pleaded  in  bar 
to  such  an  action,  commenced  within  six  years  after  the 
act  took  effect.  The  net  does  not  operate  retrospectively, 
nor  run  conjointly  with  the  repealed  act  of  1839. 

This  suit  was  commenced  on  the  17th  day  of  January, 
1849,  and  the  act  for  the  limitation  of  actions  did  not  take 
effect  till  the  4th  day  of  July,  1843  ;  consequently  it  could 
not  be  pleaded  in  an  action  of  debt  previous  to  the  4th  of 
July,  1849. 


244  SUPREME  COURT  CARES, 

Hinch  V.  Weatherford. 

The  court  below  having  erred  in  overruling  the  de- 
murrer, the  judgment  is  reversed  and  a  trial  de  novo 
awarded. 

Judgment  reversed. 

W,  H.  Seevers,  for  plaintiff  in  error. 

J,  C.  Hallf  for  defendant. 


HINCH  et  al.  v.  WEATHERFOED. 

Statute  of  limitations  approved  February  15,  1843,  cannot  be  pleaded  in  bar 
to  any  action  of  debt,  assumpsit,  &c.,  commenced  before  July  4,  1849. 

Ekror  to  Mahaska  District  Court. 

Opinion  by  Greene,  J.  This  suit  was  commenced  be- 
fore a  justice  of  the  peace  on  the  28th  of  December,  1848, 
on  a  promissory  note  dated  January  5,  1841,  payable 
one  day  after  date.  The  defendant  pleaded  the  statute  of 
limitations,  and  obtained  judgment ;  and  thereupon  the 
plaintiff  took  an  appeal  to  the  district  court. 

On  the  trial,  the  court  charged  the  jury,  that  by  the 
terms  of  the  note,  the  cause  of  action  accrued  more  than 
six  years  before  the  commencement  of  the  suit ;  and  that, 
as  it  came  within  the  statute  of  limitations,  the  plaintiffs 
could  not  recover.  This  instruction  under  former  decisions 
of  this  com-t  was  erroneous. 

It  has  repeatedly  been  decided  by  this  court,  that  the 
Iowa  statute  of  limitations,  approved  February  15,  1843, 
cannot  be  successfully  pleaded  as  a  bar  to  any  action  of 
debt,  assumpsit,  &c.,  commenced  within  six  years  after 
the  act  took  effect.  As  the  act  was  not  in  force,  and  did 
not  commence  running  as  a  limitation  of  suits  till  the  4th 
day  of  July,  1843,  such  an  action  could  only  be  brought 


OTTUMWA,  JUNE,  1849.  245 

Kimble  v.  Riggin. 

within  its  purview  after  the  4th  day  of  July,  1849.  But 
in  this  case,  the  suit  was  commenced  on  the  28th  of 
December,  1848,  and  consequently  the  limitation  was  im- 
properly applied. 

Judgment  reversed. 

W.  n,  Seevers,  for  plaintiffs  in  error. 

J",  C,  Hallf  for  defendant. 


»•  *  •  < 


KIMBLE  V.  RIGGHT. 

Where,  on  an  appeal  to  the  district  court  from  the  judgment  of  a  justice  ol 
the  peace,  it  appeared  that  no  judgment  was  entered  by  the  justice  on  the 
verdict  of  the  jury,  held  that  the  district  court  had  no  jurisdiction  of  the 
cause  ;  and  that  even  the  appearance  of  the  parties  in  the  supposed  appeal 
in  the  district  court  could  not  confer  jurisdiction  over  the  invalid  pro- 
ceedings of  the  justice. 

Error  to  Van  Buren  District  Court. 

Opinion  by  Greene,  J.  This  case  was  commenced 
before  a  justice  of  the  peace,  and  a  verdict  found  for  the 
plaintiff.  Upon  this  verdict  no  judgment  was  rendered 
by  the  justice.  The  case  was  taken  to  the  district  court 
by  appeal,  and  the  plaintiff  there  obtained  judgment. 

It  is  urged  as  an  objection,  that  as  there  was  no  judg- 
ment rendered  by  the  justice,  there  was  nothing  to  appeal 
from — nothing  over  which  the  district  court  could  exercise 
jurisdiction.  The  statute  provides  for  an  appea*!  from  the 
judgment  or  decision  of  a  justice.  Without  such  judgment 
or  decision,  it  is  manifest  that  there  is  no  ground  for 
appeal,  nothing  to  appeal  from,  and  that  the  appellate 
court  could  exercise  no  jurisdiction.  The  case  not  having 
been  taken  to  the  district  court  from  the  decision  of  a  jus- 
tice, nor  in  any  manner  provided  by  law,  that  court  could 


246  SUPREME  COURT  CASES, 

Ellis  V.  Mosier. 

not  properly  entertain  the  proceedings,  nor  enter  judg- 
ment thereon.  In  such  a  case,  even  the  appearance  of 
the  parties  in  the  supposed  appeal  could  not  confer  juris- 
diction over  the  invalid  proceedings  of  the  justice.  The 
case  would  have  been  different  had  the  parties  appeared 
originally  in  the  district  court,  and  by  consent  proceeded 
to  trial ;  but  as  the  appearance,  trial,  and  judgment  were 
predicated  upon  an  appeal  unauthorized  by  law,  we  can 
but  regard  the  proceedings  as  a  nullity.  But  it  is  urged, 
that  as  the  statute  authorizes  a  trial  de  novo  on  an  appeal, 
the  difficulty  as  to  jurisdiction,  occasioned  by  a  want  of 
judgment  in  the  inferior  com't,  is  removed.  We  are  un- 
able to  see  how  this  fact  can  confer  jurisdiction.  Though 
a  trial  de  novo  is  awarded  in  the  district  court,  that  trial 
is  of  an  appellate  character.  The  powers  of  that  court 
over  the  parties,  and  the  subject  matter,  emanate  exclu- 
sively from  the  appeal.  The  very  rules  of  pleading,  of 
evidence,  and  of  practice,  the  same  limitation  of  jurisdic- 
tion, follow  the  appeal  from  the  inferior  to  the  higher  tri- 
bunal, and  must  regulate  and  govern  the  trial  de  novo. 

There  having  been  no  foundation  for  the  appeal,  and 
hence  a  want  of  jurisdiction  in  the  district  court,  the 
judgment  in  this  case  must  be  reversed. 

Judgment  reversed. 
Wright  and  Knapp,  for  plaintiff  in  error. 
A.  Holly  for  defendant. 


ELLIS  V.  MOSIER. 

A  contract  by  which  E  agrees  to  purcliase  for  M,  at  the  United  State§  land 
office,  a  portion  of  public  land,  upon  which  M  has  made  valuable  im- 
provements, is  not  repugnant  to  the  act  of  Congress  passed  in  1830,  to  prfr 


i 


OTTUMWA,  JUNE,  1849.  247 

Ellis  V.  Mosier. 

vent  fraudulent  practices  at  the  public  sales  of  the  lands  of  the  United 

States. 
Where  an  agreement  is  not  calculated  to  prejudice  the  price  and  sale  of  the 

public  lands,  it  is  not  affected  by  the  law  of  1830. 
Agreements  in  relation  to  improvements  and  claims  on  the  public  lands  we 

recognized  by  the  laws,  courts  and  customs  of  Iowa. 


In  Equitt.    Appeal  feom  Mahaska  District  Couet. 

Opinion  ly  Greeite,  J.  Enoch  Mosier  filed  his  bill  in 
chancery  for  the  specific  performance  of  a  contract  made 
for  improvements  on  public  land.  It  appears  that  Mosier 
had  a  claim  and  valuable  improvements  on  half  a  sec- 
tion of  land  belonging  to  the  United  States,  and  made 
a  bar o-a in  with  Julian  Ellis,  bv  which  hu  sold  him  one  half 
thereof,  and  as  the  land  on  division  could  not  be  pur- 
chased in  the  name  of  each  of  the  parties  at  the  publif- 
sales,  it  was  agreed  that  Ellis  should  purchase  the  land 
and  take  the  certificate  of  purchase  in  his  own  name,  and 
thereupon  deed  to  the  complainant  his  half  of  the  land. 
It  also  appears,  that  the  complainant  furnished  his  share  of 
the  means  for  the  purchase  in  the  claim ,  which  was  valued 
by  the  parties  at  $400  ;  that  the  defendant  offered  to  pay 
to  the  complainant  the  purchase  money  for  the  half  of  the 
claim  he  had  purchased,  but  the  complainant  intrusted 
the  keeping  of  it  to  the  defendant,  under  his  promise  to 
act  as  his  agent  in  applying  it  to  the  purchase  of  the  land 
in  question.  A  written  agreement  under  seal  was  accord- 
ingly entered  into  between  the  parties,  on  the  22d  of 
June,  1846,  which  witnesseth  :  "  That  Enoch  Mosier  here- 
by agrees  to  permit  Julian  Ellis  to  enter  at  the  coming 
land  sales  his  entire  claim,  situated  in  Mahaska  county, 
Iowa  territory,  consisting  of  one  hundred  and  sixty  acres 
of  prairie,  and  one  quarter  of  timber,  on  the  following 
conditions,  which  Julian  Ellis  binds  himself  by  these 
presents,  in  the  penalty  of  $1000  to  perform:  Julian 
Ellis  to  furnish  $400  to  enter  the  claim  all  in  his  own 
name,  and  then  so  soon  as  he  can  obtain  a  certificate 
from  the  land  office,  to  deed  to  said  Mosier  the  north  half 


248  SUPREME  COURT  CASES, 

Ellis  V.  Mosier. 

of  the  quarter  section  of  prairie,  and  eighty  acres  of  the 
timber,  consisting  of  that  part  of  the  quarter  section  which 
the  said  Mosier  shall  select,"  &c.  A  particular  descrip- 
tion of  the  land  is  set  forth  in  the  hill,  and  also  an  aver- 
ment that  the  complainant  selected  the  west  half  of  the 
quarter  section  of  timber  referred  to  in  the  agreement, 
and  gave  written  notice  of  such  selection  to  the  defend- 
ant. The  defendant,  it  appears,  entered  the  land  accord- 
ingly, obtained  for  it  a  certificate,  and  subsequently  a 
patent  from  the  President  of  the  United  States  ;  and  that 
both  parties  entered  upon  their  respective  portions  of  the 
land,  and  each  continued  in  possession  by  the  consent  and 
acquiescence  of  the  other ;  that  the  complainant  has 
greatly  enhanced  the  value  of  his  portion  of  the  land  by 
valuable  improvements  ;  and  that  he  has  often  applied  to 
the  defendant  for  a  performance  specifically  of  his  agree- 
ment, by  conveying  the  land  in  question,  but  that  he  had 
whollv  neo'lected  and  refused  so  to  do. 

The  defendant  demurred  to  the  bill,  which  was  over- 
ruled; having  failed  to  plead  or  answer  as  required  by 
rule  of  court,  he  was  considered  in  default.  By  the  decree, 
it  was  adjudged  that  the  respondent  make  and  deliver  to 
the  complamant  a  good  and  sufiicient  warranty  deed  of 
the  real  estate  set  forth  in  the  bill,  within  thirty  days  from 
the  adjournment  of  that  court,  and  that  in  default  thereof, 
the  real  estate  in  question  should  be  vested  in  the  com- 
plainant by  virtue  of  the  decree,  which  should  be  treated 
as  a  conveyance. 

It  is  now  urged,  that  the  court  should  have  sustained 
the  demurrer  to  the  bill  on  the  ground  that  the  agreement 
between  the  complainant  and  respondent  was  founded 
upon  an  unlawful  consideration,  and  was  therefore  void. 
To  sliov,^  the  illegal  character  of  the  contract,  the  respond- 
ent refers  to  the  4th  and  5th  sections  of  an  act  of  Con- 
gress, ''  for  the  relief  of  the  purchasers  of  the  public 
lands,  and  for  the  suppression  of  fraudulent  practices  at  the 
public  sales  of  the  lands  of  the  United  States,"  approved 
March  31,  1830.     The  4th  section  referred  to  provides  a 


OTTUMWA,  JUNE,  1849.  249 

Ellis  V.  Hosier. 

penalty  against  any  person  who  "  shall,  before  or  at  the 
time  of  the  public  sale  of  any  of  the  lands  of  the  United 
States,  bargain,  contract  or  agree  with  any  other  person, 
that  the  last  named  person  shall  not  bid  upon  or  pm-chase 
the  land  so  offered  for  sale,  or  any  parcel  thereof;  or  shall, 
by  intimidation,  combination  or  unfair  management,  hinder 
or  prevent,  or  attempt  to  hinder  or  prevent,  any  person 
Irom  bidding  upon  or  purchasing  any  tract  of  land  so 
offered  for  sale."  The  5th  section  provides,  that  all  agree- 
ments before  or  at  the  iniblic  sale,  "  to  purchase  such 
land,  to  i^ay  or  give  to  such  purchasers  for  such  land  a 
sum  of  money,  or  other  article  of  property,  over  and  above 
the  price  at  which  the  land  may  or  shall  be  bid  off  by 
such  pm'chasers,"  shall  be  null  and  void. 

The  question  arises.  Does  the  contract  between  the 
parties  in  this  case  come  within  the  object  and  meaning  of 
the  law  above  referred  to  ?  The  prevailing  object  of  the 
law  clearly  is  to  prevent  agreement  and  combinations 
prejudicial  to  the  price  and  sale  of  the  public  lands ;  and 
to  promote  that  object,  the  4th  section  renders  it  a  penal 
offence  to  make  any  bargain  or  combination  to  prevent 
bidding  upon  government  lands  offered  at  public  sales  ; 
and  the  5th  section  declares  all  contracts  and  asrreements 
void  which  tend  to  preclude  such  bids.  Is  there  any 
thing  in  the  arrangement  and  contract  between  these 
parties  which  can  implicate  them  as  violating  these  regu- 
lations of  Congress,  or  render  the  contract  they  entered 
into  void?  We  think  not.  It  was  a  legitimate  trans- 
action, recognized  by  the  prevailing  customs  of  the  West, 
sanctioned  by  the  laws  of  our  state  and  by  the  decisions 
of  our  courts. 

Hosier  had  a  claim  and  valuable  improvements  on  the 
public  lands,  and  for  one  half  of  the  claim  Ellis  engaged 
to  pay  him  $200.  Hosier  intrusted  the  $200  with  Ellis, 
as  agent,  to  purchase  for  him  his  remaining  portion 
of  the  land  at  the  public  sales,  with  the  understanding 
that  Ellis  should  deed  to  Hosier  his  portion  of  the  pur- 
chase, upon  its  being  perfected.  Here  was  no  agreement, 
Vol.  IL  17 


:^50  SUPREME  COURT  CASES, 

Ellis  V.  Hosier. 

as  contemplated  by  the  5tli  section  referred  to,  by  wliicli 
tlie  purchaser  of  the  land  at  the  sales  was  to  receive 
"  a  Slim  of  money  or  other  article  of  property  over  and 
above  the  price  "  bid  by  the  purchaser.  We  can  only 
recognize  it  as  a  contract  by  which  Ellis  agreed  to  pay 
Mosier  for  improvements,  and  as  a  consideration  there- 
for, give  him  $200,  which  he  was  to  pay  by  purchasing 
for  him  at  the  public  sales  the  quarter  section  of 
land  in  controversy.  So  far  from  discouraging  or 
j)rejudicing  the  sale  of  the  public  domain,  it  was  through- 
out a  transaction  by  which  the  value  was  enhanced 
and  the  sale  secured.  The  improvements  not  only  gave 
value  to  and  promoted  the  sale  of  the  land  for  the 
government,  but  also  enhanced  the  value  and  would  neces- 
sarily promote  the  sale  of  the  adjacent  lands.  It  cannot 
then  be  successfully  urged,  that  the  improvements  upon, 
or  the  contract  in  relation  to,  the  land  described  in  com- 
plainant's bill,  either  abated  the  price  or  retarded  the  sale 
of  government  lands  ;  nor  can  we  see  why  the  contract 
should  be  regarded  as  a  nullity  under  the  sections  of  the 
act  we  have  cited.  We  regard  it  as  an  agreement  entirely 
removed  from  the  objectionable  conditions  which  are 
condemned  by  that  law. 

The  principle  that  improverrients  and  a  claim  on 
public  lands  constitute  a  valid  consideration,  in  bar- 
gains relating  to  and  founded  upon  them,  has  been  re- 
peatedly recognized  by  our  territorial  supreme  court. 
Morris'  Iowa  R.,  Hill  v.  Smith  et  at.,  70 ;  Freeman  v, 
Holliclay^  80;  Stannard  v.  McCarly^  120;  Starr  v.  Wilson^ 
438. 

We  are  unable  to  see  any  feature  of  equity  or  good  con- 
science in  the  objections  raised  by  the  respondent  to  the 
decree  of  the  district  com-t.  Indeed,  all  the  circumstances 
of  the  case,  the  fiduciary  capacity  which  resiDondent 
assumed,  and  in  which  he  acted,  the  manner  in  which  he 
recognized  the  occupancy,  possession  and  improvements 
of  the  complainant  subsequent  to  the  purchase  of  the  real 
estate,  present  a  forcible  appeal  in  contemplation  of  equity 


OTTUMWA,  JUNE,  1849.  251 

Games  v.  Manning, 

jurisprudence  in  support  of  the  justice  and  correctness  uf 
tire  decree. 

Decree  affirmed. 

J,  C.  Hall  and  IF.  H,  Seevers,  for  appellant. 

Wright  and  Knapp,  for  appellee. 


GAMES  V.  MANNING. 

Where  a  promissory  note  for  a  sum  certain  is  payable  in  leather  at  the  tan- 
yard  of  the  maker,  a  demand  of  the  leather  is  not  necessary. 

In  a  suit  against  the  maker  of  a  note,  or  the  acceptor  of  a  bill  payable  at  a 
specified  time  and  place,  it  is  not  necessary  to  aver  or  prove  a  demand  of 
payment,  and  the  same  rule  is  ajiplicable  to  notes  payable  in  specific  pro- 
perty. 

In  order  to  discharge  himself  from  a  note  payable  in  specific  articles,  it  ia 
necessary  for  the  maker  to  show  that  he  had  paid,  tendered,  or  set  apart 
the  property  as  payment  of  tlie  note. 

If  a  debtor  make  a  tender  of  the  specific  articles  he  has  promised,  and  pro- 
perly designated  and  set  them  apart  at  the  time  and  place  stipulated,  and 
the  creditor  is  not  there  to  receive,  or  refuses  to  accept  the  property,  the 
debt  is  thereby  discharged,  and  the  property  passes  to  the  creditor. 

A  demand,  after  a  property  note  becomes  due,  is  a  waiver  of  any  previous 
breach,  and  gives  the  maker  a  second  opportunity  to  pay  in  property. 

Error  to  Van  Buren  District  Court. 

Opinion  by  Greene,  J.  Assumpsit  on  a  promissory 
note  made  by  G.  W.  Games  for  $300  payable  in  leather, 
on  or  before  January  1,  1844,  at  his  tan-yard.  A  memo- 
randum on  the  back  of  the  note  stated  the  price  of  sole 
and  harness  leather  at  28  cents  per  pound,  and  upper 
leather  at  50  cents  per  pound,  and  the  agreement  of 
Games  to  pay  the  note  in  leather  at  those  prices,  one 
third  of  each  kind,  one  half  by  the  1  st  of  September,  and 
one  half  by  the  20th  of  September,  1844,  and  that  Man- 
ning agreed  to  take  the  leather  as  above  specified.     On 


252  SUPREME  COURT  CASES, 

Games  v.  Manning. 

the  trial,  it  appeared  in  evidence  tliat  James  "Weir,  to 
whose  order  the  note  was  made  payable,  had  assigned  it 
to  Manning  after  it  became  due,  and  no  evidence  was  given 
of  a  previous  demand,  or  tender,  or  readiness  to  pay ;  that 
the  arrangement  stipulated  in  the  memorandum  on  the 
note  was  entered  into  by  the  parties  to  this  suit,  after  the 
assignment,  and  that,  after  the  last  instalment  mentioned 
therein  fell  due,  Manning  called  for  the  leather  at  the 
tannery,  and  though  the  defendant  below  had,  and  offered 
enough  upper  and  harness  leather  to  pay  the  note,  the 
plaintiff  required  a  due  proportion  of  sole  leather,  of  which 
the  defendant  had  none,  and  failing  to  furnish  the  same, 
the  plaintiff  refused  to  receive  any  leather  on  the  note. 
Thereupon  the  defendant  asked  the  court  to  instruct  the 
juiy  that  the  plaintiff  could  not  recover  without  proving 
a  demand  of  the  leather  at  the  place  of  delivery  before  the 
suit  was  brought ;  and  that  it  was  not  necessary  for  the 
defendant  to  set  apart,  designate,  and  keep  the  leather  as 
a  payment,  in  order  to  discharge  himself  from  the  obliga- 
tion. But  the  court  refused  to  give  this  instruction  as 
asked,  and  in  effect  charged  the  jury  that  no  demand  was 
necessary;  that,  as  the  stipulations  of  the  note  and  memo- 
randum required  no  precedent  act  on  the  part  of  the  plain- 
tiff, it  was  the  duty  of  the  defendant  to  pay,  or  tender,  or 
set  apart,  the  property  of  the  requisite  kinds  and  quan- 
tities at  the  time  and  place  specified.  The  court  also 
instructed  the  jury  that  the  subsequent  demand  was  a 
waiver  of  any  previous  breach,  and  if  the  property  had 
been  delivered,  or  tendered,  or  set  apart  in  i3ayment  upon 
such  demand,  or  if  it  had  been  done  in  a  reasonable  time 
thereafter,  and  notice  thereof  given  to  the  plaintiff,  it 
would  have  been  a  sufficient  performance,  in  default  of 

(v^hicli  the  contract  would  be  again  broken.     Verdict  and 

judgment  for  the  plaintiff  for  the  balance  due  on  the  note. 
To  these  proceedings  various  objections  have  been  urged, 

which  may  be  comprised  under  three  heads. 

1.  In  order  to  enable  the  plaintiff  to  recover  on  the  note, 

was  a  previous  demand  of  the  property  necessary  ?     Agree- 


OTTUMWA,  JUNE,  1849.  253 

Games  v.  Manning. 

able  to  the  prevailing  current  of  American  decisions,  it  is 
not  necessary  to  prove  a  demand  of  payment  in  an  action 
on  a  promissory  note,  payable  at  a  particular  place,  in 
order  to  enable  the  phiintiff  to  recover  against  the  maker, 
though  it  would  be  otherwise  when  the  recovery  is  sought 
against  the  indorser.  llWheat.,  171;  17  Mass.,  389;  15 
Pick., 212;  4  Conn. ,465;  3KH.,33;  8  Co  wen,  271;  3 
Wend.,  13;  6Ala.,:01,865;  8Port.,346;  1  How. Miss., 230; 
3  Pike,  389;  1  Scam.,  466,  578;  13  Peters,  136;  8  Vt.,  191. 

The  decisions  upon  this  point,  it  is  true,  refer  mainly  to 
notes  payable  in  money,  and  not  in  sj^ecific  articles.  But 
we  think  no  good  reason  can  be  given  why  the  rule  should 
not  be  as  applicable  to  property  notes  as  it  is  to  those 
which  are  payable  in  money,  especially  in  this  state,  where, 
by  statute,  an  instrument  of  writing  or  a  contract  in  the 
form  of  a  promissory  note,  payable  in  articles  of  personal 
property,  is  rendered  negotiable,  and  is  treated  as  a  pro- 
missory note  in  all  particulars  affecting  the  rights  and 
liabilities  of  the  party  thereto.     Kev.  Stat.,  451,  555. 

In  Vermont,  where  notes  payable  in  specific  articles 
occuj}y  nearly  the  same  commercial  relation  that  they  do 
in  this  state,  {Denison  v.  Tyso)i,  17  Vt.,  459,)  no  demand 
is  necessary  before  bringing  suit  on  a  note  payable  in 
specific  property  on  a  day  specified.  Elkins  v.  Parkhurst, 
17  Vt.,  105.  The  court  say  in  that  case  that  a  special 
demand  has  never  been  held  necessary  when  a  day  certain 
is  fixed  for  the  payment  of  the  specific  articles.  And  in 
Fleming  v.  Potter,  7  Watts  Pa.,  380,  no  demand  was  held 
to  be  necessary. 

The  obvious  interpretation  of  the  promise  made  by  the  - 
note  in  this  case  is,  that  the  specific  kinds  and  quantity 
of  leather  should  be  ready  for  the  plaintiff  at  the  place 
and  on  the  day  specified.  The  promise  is  without  condi- 
tion ;  it  contemplates  no  preliminary  act  or  precedent 
demand,  but  undertakes  an  absolute  performance  by  the 
maker,  whether  the  holder  of  the  note  is  present  at  the 
time  and  place  to  receive  the  specific  articles  or  not.  The 
absence  of  the  plaintiff  could  not  exonerate  the  defendant's 


254  SUPREME  COURT  CASES, 

Games  v.  Manning. 

liability  to  have  the  property  ready  for  him,  according  to 
the  stipulations  of  the  note.  If  the  defendant  had  shown 
that  he  was  ready  to  deliver  the  specific  articles,  accord- 
ingf  to  the  tenor  and  effect  of  the  note,  hut  did  not  desii;"- 
nate  and  set  them  apart,  it  would  then  have  been  incum- 
bent on  the  plaintiff  to  prove  a  subsequent  demand,  or  a 
refusal  by  tl:  e  defendant  to  make  the  payment.  Conn  v. 
Gano,  1  Oliio,  211,  Ham.,  486.  But  we  do  not  deem  it 
necessary  to  enlarge  upon  this  point,  for  the  uniform 
course  of  American  decisions  shows,  that  when  the  suit  is 
against  the  maker  of  a  note,  or  the  acceptor  of  a  bill  of 
exchange  made  payable  at  a  specified  time  and  place,  it  is 
not  necessary,  in  order  to  maintain  the  action,  to  aver,  or 
prove  on  the  trial,  that  a  demand  of  payment  was  made  ; 
and  this  doctrine  we  consider  applicable  to  notes  payable 
in  specific  articles. 

2.  The  next  question  to  be  considered  is,  Was  it  neces- 
sary for  the  defendant,  in  order  to  discharge  himself  from 
his  obligation,  to  show  that  he  had  paid,  or  tendered,  or 
set  apart  the  leather  as  payment  of  the  note  ?  By  the  in- 
struction to  the  jury,  the  court  below  decided  this  question 
in  the  affirmative,  and  this,  it  is  claimed,  was  erroneous. 
The  authorities  do  not  appear  to  run  in  the  same  current 
upon  this  point,  but  the  better  opinion  appears  to  be  that 
if  the  debtor  makes  a  tender  of  the  specific  articles  he  has 
promised,  and  properly  designate  and  set  them  apart,  at 
the  time  and  place  stipulated,  and  the  creditor  is  not  there 
to  receive,  or  refuses  to  accept  the  property,  the  debt  is 
thereby  discharged,  and  the  right  of  pro]3erty  in  the  articles 
thus  designated  and  set  apart,  passes  to  the  creditor. 
Sling erland  v.  Morse,  8  John.,  474,  478  ;  Sheldon  v. 
Skinner,  4  Wend.,  528;  Lamh  v.  Lathrop,  13  ib.,  95,  97; 
Garrard  Y.  Zachariak,  1  Stewart's  Ala.,  272;  Thaxton  v. 
Edwards,  ib.,  624;  Smith  y.  Loomis,  7  Conn.,  110;  Robin- 
son V.  Batshelder,  4  N.  H.,  46 ;  Gilman  v.  Moore,  14  Vt., 
457 ;  2  Kent's  Com.,  507  ;  Zim  v.  Rowley,  4  Barr.,  169. 

Johnson  V.  Baird,  3  Blackf.,  153,  182,  was  an  action 
on  a  promissor}'  note  payable  in  hats  at  a  certain  time  and 


OTTUMWA,  JUNE,  1849.  255 


Games  v.  Manninir. 


place.  The  defence  set  np  was,  tliat  at  the  time  and  place 
the  note  became  due  the  defendant  was  ready  with  the 
hats,  to  pay  and  discharge  the  note,  but  that  no  person  at- 
tended to  receive  them;  that  he  had  always  been  and  still 
was  ready  to  deliver  them  at  the  place  appointed,  if  the 
I^laintiff  would  attend  to  receive  them.  This  was  held  to 
be  a  o-ood  defence  to  the  action.  But  the  case  was  decided 
upon  the  sufficiency  of  a  plea  of  readiness  to  perform,  in 
which  the  uncore  prist  was  fully  averred.  In  connection 
with  that  decision  the  court  say,  "  that  when  the  defend- 
ant elects  to  avail  himself  of  such  a  defence,  and  retains 
the  articles  in  his  possession,  he  is  bound  at  his  own  peril 
and  risk  to  keep  them  safely  and  deliver  them  to  the 
creditor  on  his  demand ;  and  should  he  neglect  or  refuse 
60  to  do,  he  is  liable  in  an  action  of  trover  or  conversion;" 
and  they  further  say,  that  by  his  plea  he  acknowledges 
his  duty  to  so  keep  and  deliver  the  articles,  and  makes  the 
whole  a  matter  of  record  by  which  he  is  for  ever  bound. 
This  reasoning  of  the  court  clearly  shows  that  something 
more  than  a  mere  readiness  to  pay  must  be  proved  in 
order  to  discharge  the  defendant  from  all  liability  on  the 
contract.  In  order  to  keep  those  particular  articles  safe  for 
the  creditor,  they  must  have  been  set  apart  or  designated 
as  the  property  of  the  creditor,  and  not  remain  indiscrim- 
inately commingled  with  like  articles  retained  by  the 
debtor  or  owned  by  others.  And  in  the  same  opinion  the 
court  admit  that  the  defence  would  be  clearly  unavailable, 
if  it  merely  set  up  "  that  the  debtor  was  ready  at  the  time 
and  place  of  payment  with  the  articles,  but  that  no  one 
was  there  to  receive  them."  3  Blackf.,  188.  So  in  Dor- 
man  V.  Elder,  ib.,  490,  where  it  was  pleaded  in  bar  to  an 
action  of  covenant,  for  the  non-delivery  of  hogs  worth  a 
certain  sum,  by  a  specified  time,  that  the  hogs  were  set 
apart  at  the  time  stipulated,  and  that  the  plaintiff  failed 
to  attend,  it  was  held  that  the  plea  should  have  stated  the 
number  of  hogs  so  set  apart,  and  also  that  they  then  were 
left  at  the  phice  for  the  plaintiff,  or  that  they  were  and 
al\\';;vs  had  been  readv  to  be  delivered.      In  these  decisions 


256  SUPREME  COURT  CASES; 

Games  v.  Manning. 

we  can  see  nothing  to  militate  against  the  propriety  of  the 
instructions  in  the  present  case.  They  certainly  require 
somethiug  more  to  bar  such  actions  than  a  mere  readiness 
to  deliver  the  j^roperty  at  the  time  and  place  appointed. 
The  property  should,  at  least,  be  set  apart  and  designated 
for  the  benefit  of  the  creditor.  We  conclude,  then,  that 
the  court  below,  in  charging  the  jury,  did  not  require  more 
proof  than  would  have  been  necessarj^  to  discharge  the 
defendant  from  his  obligation. 

3.  So  far  as  the  concluding  instruction  of  the  court  is 
concerned,  we  think  the  plaintiff  in  error  has  even  slighter 
grounds  for  objection.  The  subsequent  demand  being  a 
waiver  of  any  previous  breach,  the  defendant  had  a  second 
opportunity  to  deliver,  or  tender,  or  set  apart  the  specific 
articles,  in  payment  of  the  note  upon  such  demand.  To 
this  instruction  we  can  see  no  legal  objection,  nothing  in 
it  that  could  result  in  hardship  or  inconvenience  to  the 
defendant.  But  the  court  went  still  further  in  his  behalf, 
and  instructed  the  jury,  that  if  the  property  had  been  set 
apart  as  payment  in  a  reasonable  time  after  such  demand, 
and  notice  thereof  had  been  given  to  the  plaintiff,  it  would 
have  been  a  sufficient  performance.  The  plaintiff  in  error 
at  least  has  no  right  to  complain  of  this  branch  of  the 
charge.  It  was  as  favorable  to  him  as  it  well  could  be, 
in  affording  him  a  reasonable  time  after  the  subsequent 
demand  to  discharge  the  note  in  leather.  His  failure  to 
deliver  the  leather  on  such  demand  gave  the  holder  of 
the  note  an  immediate  right  to  his  action ;  and  it  may 
well  be  questioned,  whether  he  was  under  obligations  to 
delay  it  even  a  reasonable  time  for  such  a  notice. 

Judgment  affirmed, 

Wright  and  Knapp^  for  plaintiff  in  error. 

J,  C.  Hall,  for  defendant. 


OTTUMWA,  JUNE,  1849.  25- 


Crooksliank  v.  Mallory. 


CROOKS  HANK  et  al.  v.  MALLORY. 

A  party  cannot  avail  himself  of  his  own  objections  to  work  done  for  him 
and  his  refusal  to  accept,  as  a  reason  for  not  paying  for  it ;  nor  can  he 
give  in  evidence  his  own  acts  and  declarations,  in  order  to  show  that 
another  party  has  failed  in  his  contract  to  him. 

AVhere  a  dwelling  frame  is  defectively  erected,  but  still  is  of  substantial  value 
to  the  defendant,  for  the  purpose  intended,  tlie  plaintiff  would  be  entitled 
to  a  compensation,  to  be  ascertained  by  deducting  from  the  contract 
price  so  much  as  the  frame  was  worth,  less  than  it  would  have  been  if 
completed  according  to  agreement. 

It  was  not  necessary  for  the  defendants  to  accept  the  dwelling  in  order  to 
justify  a  recovery  against  them. 

A  mere  right  to  a  reduction  of  plaintiff's  demand,  in  consequence  of  defects 
in  the  work  for  which  it  was  cliarged,  is  not  a  demand  which  can  be 
brought  in  as  a  set-off  against  plaintiff's  demand. 

A  set-off  must  be  predicated  upon  an  independent  demand. 

Erkor  to  Van  Buren  District  Court. 

Opinion  by  Greene,  J.  An  action  of  assumpsit  by 
Samuel  Mallory  against  Jesse  and  James  J.  Crooksliank, 
in  which  the  phaintiiF  recovered  a  verdict  and  judgment  of 
25  cents. 

The  suit  was  for  work  under  a  written  contract  to  erect 
a  frame  for  a  dwelling,  and  also  a  frame  for  a  kitchen  at- 
tached to  the  same,  under  a  separate  contract.  It  appeared 
on  the  trial  that  the  defendants  had  finished  off  the 
kitchen  part,  and  were  living  in  it,  and  liad  left  the  main 
building  unfinished,  alleging  that  it  was  not  framed  in  a 
workmanlike  manner,  nor  within  the  time  stipulated  by 
the  contract. 

1.  The  defendants  gave  evidence  tending  to  prove  that 
they  had  paid  most  of  the  contract  price  for  the  dwelling 
frame,  before  it  was  finished;  that  on  the  day  it  was  raised 
and  the  defects  appeared,  they  objected  to  them,  and 
to  those  parts  that  were  incomplete  ;  that  they  then,  and 
have  ever  since  refused  to  pay  the  balance  due  on  the 
contract,  in  consequence  of  these  defects  ;  and  that  they 
had  always  refused  to  accept  the  dwelling  frame  from  the 


258  SUPUEME  COURT  CASES, 

Crookshank  v.  Mallory. 

plaintiff.  This  evidence  was  excepted  to,  and  was  ruled 
out  by  the  court.  To  this  ruling  objections  are  urged, 
but  we  think  the  court  acted  correctly.  The  defendants 
could  not  avail  themselves  of  their  own  objections  and 
refusals  as  a  justification  for  not  paying  a  debt.  A  party 
cannot  give  evidence  of  his  own  acts  and  declarations  in 
order  to  show  that  another  party  has  failed  in  his  contract 
to  him. 

2.  It  is  objected  that  the  court  charged  the  jury,  that  if 
the  dwelling  frame  was  defective  in  some  particulars,  and 
not  entirely  completed  within  the  time,  and  in  the  manner 
specified,  but  was  nevertheless  of  real  substantial  value  to 
the  defendants  for  the  purpose  intended,  the  plaintiff 
would  be  entitled  to  a  compensation,  to  be  ascertained  by 
deducting  from  the  contract  price  so  much  as  it  was  worth, 
less  than  it  would  have  been  if  completed  according  to 
agreement.  There  is  nothing  pointed  out  to  us  in  this  in- 
struction that  is  not  perfectly  consistent  with  the  contract, 
or  that  infringes  upon  any  principle  of  law.  The  doctrine 
involved  in  this  instruction  was  fully  recognized  by  this 
court  in  Davis  v.  Fish,  1  G.  Greene,  406.  We  there  say, 
that  "  the  rule  is  settled  beyond  question-,  that  if  a  job  of 
work  is  of  some  use  and  value  to  the  employer  or  vendee, 
though  improperly  done,  or  not  within  the  stipulated 
time,  still  the  workman  or  vendor  is  entitled  to  recover 
as  much  as  the  work  is  reasonably  worth  ;  making  such 
allowance  as  the  circumstances  may  require."  Under 
this  rule,  the  above  charge  to  the ''jury  was  obviously  cor- 
rect. 

3.  The  court  then  instructed  the  jury  that,  to  enable  the 
plaintiff  to  recover,  it  was  not  necessary  that  defendants 
should  have  taken  the  dwelling  frame  off  his  hands.  This 
instruction  is  also  unexceptionable.  Such  an  improve- 
ment attaches  to  the  realty.  It  is  a  part  of  the  land,  and 
passes  to  the  owner  with  his  possession  of  the  land,  with- 
out the  formality  of  a  delivery  and  acceptance. 

4.  The  defendants  gave  evidence,  tending  to  show  that 
they  had  sustained  damages  by  plaintiff's  defective  per- 


1 


OTTUMWxV,  JUNE,  1849.  259 

Crookshank  v.  Mallory. 

formance  of  the  contract ;  and  they  then  asked  the  court 
to  direct  the  jury  to  treat  such  damages,  if  they  found 
any,  as  so  much  set-off;  and  if,  in  striking  a  bahxnce,  any 
thing  should  be  due  the  defendants,  they  should  return  a 
Ycrdict  in  their  favor  for  such  a  balance.  But  the  court 
refused  to  give  such  directioa  to  the  jury.  To  this  ruling 
the  defendants  excepted,  and  now  urged  the  same  as  error. 
We  think  the  court  decided  correctl3\  It  is  clear  that 
■where  a  mechanic  sues  for  his  labor,  and  a  defence  is  made 
by  setting  up  damages  for  defective  work,  such  damages 
can  only  be  used  as  a  defence  against  the  plaintiff's  claim, 
and  not  as  a  ground  of  action  in  the  nature  of  set-off;  by 
which  the  defendant  may  recover  over  against  him.  The 
statute  provides  that  a  defendant  may  set-off  "  any  de- 
mand "  he  may  have  against  the  plaintiff.  Eev.  Stat.,  p. 
318.  The  defendants  in  this  case  set  up  no  demand 
against  that  of  the  plaintiff,  but  sought  rather  to  destroy 
his  claim  by  showing  that  the  work  was  not  properly 
done.  A  set-off  must  be  predicated  upon  an  independent 
demand,  which  a  defendant  has  against  the  plaintiff.  But 
in  this  case,  the  defendants  attempted  to  set-off  a  claim 
Avhich  resulted  from  and  depended  upon  the  demand  of 
the  plaintiff.  Had  the  defendants  recovered  a  verdict,  it 
would  not  have  been  the  result  of  their  demand  a^-ainst 
the  plaintiff,  but  it  would  have  been  by  the  avoidance  or 
destruction  of  the  plaintiffs  demand  against  them.  If  the 
plaintiff  had  no  demand,  the  defendants  had  nothing 
against  which  they  could  place  their  set-off;  and  if  the 
plaintiff's  demand  was  legal,  then  the  defendant's  claim 
would  necessarily  fail,  because  it  depended  upon  the  fact 
that  it  was  not  a  legal  demand. 

True,  if  the  plaintiff  had  failed  in  the  performance  of 
his  contract,  the  defendants  may  have  had  a  claim  against 
him  for  damages  ;  but  a  recovery  could  only  be  had  in  a 
cross  action.  The  defendants  had  their  election  to  sue 
for  damages,  or  to  recoupe  their  damages,  when  sued  for 
the  price  of  their  work. 

We  find  in  (Jliitty  on  Con.,  65G,  that  "  a  set-off  means  a 


2G0  SUPREME  COURT  CASES, 

Depew  V.  Davis. 

cross  claim^  for  whicli  an  action  miglit  be  maintained  by 
the  defendant  against  the  plaintiff,  and  is  very  different 
from  a  mere  right  to  a  reduction  of  his  demand  or  claim 
to  defeat  it,  on  account  of  some  matter  connected  there- 
with." This  explanation  from  Chitty  shows  that  the  court 
below  properly  refused  to  direct  the  jury  as  requested  by 
defendants. 

Judgment  affirmed. 

H.  M.  Shelby  and  J.  H.  Cowles^  for  plaintiffs  in  error. 

Wright  and  Ktiapp,  for  defendant. 

_ — t  »  »  »  t 


DEPEW  V.  DAVIS. 

Affidavits  may  be  admitted  in  support  of  a  motion  to  recommit  an  award  to 
arl)itrators,  and  if  no  objection  was  raised  to  the  affidavit  in  the  district 
court,  none  will  be  entertained  in  the  supreme  court. 

An  award  may  be  recommitted  under  the  statute,  where  a  legal  and  suffi- 
cient reason  is  given.  A  reason  that  will  justify  an  arrest  of  judgment  or 
a  new  trial,  will  justify  a  recommitment. 

An  award  should  not  be  rejected,  unless  a  want  of  jurisdiction  is  apparent 
in  the  arbitration. 

An  award  may  be  recommitted  on  the  ground  of  newly  discovered  evidence. 

Error  to  Jefferson  District  Court. 

Opinion  by  Greene,  J.  In  1841,  A.  J.  Davis  and  W. 
Depew  entered  into  an  agreement  by  which  Davis  was  to 
furnish  goods  at  Fairfield,  and  Depew  was  to  sell  them 
there,  for  one  fourth  of  the  profits.  Under  this  agree- 
ment the  parties  carried  on  a  large  business  for  three  years, 
and  then  found  it  impossible  to  settle  the  accounts  between 
them.  They  finally  agreed  to  have  their  accounts  settled 
by  referring  them  to  arbitrators,  whose  award  should  be 
filed  for  judgment  under  the  statute.  The  arbitrators  found 
a  balance  in  favor  of  Depew  of  $311.60.     The  award  was 


1 


OTTUMWA,  JUNE,  1849.  261 

Depew  V.  Davis. 

filed  in  the  district  court,  where  Depew  moved  for  judg- 
ment, and  Davis  moved  to  recommit.  The  two  motions 
were  heard  together  before  Hon.  C.  Mason  in  1845.  The 
court  ordered  that  the  award  be  recommitted  to  the  same 
arbitrators. 

Depew  now  claims  that  Davis  failed  to  make  out  a 
proper  case  for  recommitment.  The  motion  for  recom- 
mitment sets  forth  the  following  reasons:  1.  It  was 
contrary  to  the  evidence.  2.  Several  items  were  not 
considered,  through  inadvertance  of  arbitrators.  3.  The 
arbitrators  rejected  several  items  in  violation  of  a  written 
as>Teement.  4.  Mistakes  were  made  in  calculations. 
5.  Davis  has,  since  the 'submission,  discovered  new  and 
material  testimony  to  sustain  and  prove  one  item  of  his 
account,  amounting  to  more  than  $3600,  which  item  was 
rejected  by  the  arbitrators;  and  which  evidence  he  did 
not  know  of  at  the  time  of  the  trial.  The  facts  stated  in 
the  motion  were  supported  by  affidavits  of  Davis,  of 
G.  W.  Howe,  and  others. 

It  is  now  objected,  that  ex  parte  affidavits  should  not 
have  been  admitted  in  support  of  the  motion  to  recommit. 
It  appears  that  these  affidavits  were  admitted  in  the  court 
below,  without  exception.  To  these  affidavits  we  see  no 
legal  objection.  If  inadmissible,  the  objection  should 
have  been  raised  at  the  time  they  were  presented;  it 
cannot  now  be  entertained.  As  no  objection  was  made, 
we  must  conclude  that  there  was  no  error  in  admitting 
and  acting  upon  the  affidavits. 

By  these  affidavits,  new  and  important  evidence  is  dis- 
closed, which  would  be  likely  to  produce  an  entirely  dif- 
ferent result  in  the  award  of  the  arbitrators.  One  of  the 
witnesses  testifies  that  he  has  discovered,  from  an  exami- 
nation of  the  books,  that  a  part,  if  not  the  whole,  of  $3600, 
in  goods,  were  furnished  to  Depew  by  Davis,  and  which 
were  not  included  in  the  award  submitted.  The  affidavits 
show  that  other  testimony  could  be  produced  by  Davis 
which  would  tend  to  prove  the  same  fact,  and  the  other 
exceptions  made  in  the  motion  to  recommit.     The  record 


262  SUPREME  COURT  CASES, 

Depew  V.  Davia. 

does  not  purport  to  give  all  the  evidence  upon  whicli  the 
court  below  acted  in  ordering  the  award  to  be  recommitted. 
If,  then,  we  should  not  consider  the  afifldavits  before  us 
sufficient  to  justify  the  action  of  the  court  below,  we 
could  not  presume  that  the  court  had  not  some  additional 
and  sufficient  reason  for  recommittino-  the  award. 

The  statute  provides,  that  "  the  award  may  be  accepted 
or  rejected  by  the  court,  for  any  legal  and  sufficient  reason, 
or  it  may  be  recommitted  to  the  same  arbitrators  for  a 
rehearing  by  them."     Rev.  Stat.,  58,  §  9. 

The  award,  then,  may  be  accepted  or  rejected  for  any 
legal  and  sufficient  reason.  But  the  statute  does  not  in- 
form us  what  reasons  shall  be  legal  and  sufficient.  Are 
they  determined  by  rules  of  law,  or  are  they  left  to  the 
discretion  of  the  court,  to  be  decided  upon  the  merits  and 
circumstances  of  each  particular  case  ?  If  nothing  more 
than  a  sufficient  reason  was  requh-ed  by  the  statute,  we 
could  safely  conclude  that  the  award  might  be  accepted  or 
rejected  at  the  mere  will  or  discretion  of  the  court.  But 
it  appears  that  the  reason  must  be  both  legal  and  sufficient. 
A  legal  reason  must  be  one  which  is  recognized  by  some 
established  rule  of  law.  As  the  statute  does  not  define 
the  legal  reasons  which  should  prevail  in  such  cases,  our 
courts  must  necessarily  be  governed  by  common  law  prin- 
ciples, whicli  are  applicable  to  analogous  propositions. 
That  which  -would  be  considered  a  legal  reason  for  arrest- 
ing a  judgment,  setting  aside  a  verdict,  or  even  for  grant- 
ing a  new  trial,  might  very  justly  be  considered  by  a  court 
a  legal  and  sufficient  reason  for  rejecting  or  recommitting 
the  award  of  arbitrators.  In  all  such  cases,  it  is  true  that 
courts  of  justice  are  invested  with  large  discretionary 
powers  ;  still,  that  power  should  in  all  cases  be  governed 
by  rules  of  law,  so  far  as  ap})licable.  Had  the  legislature 
intended  tliat  the  court  should  dispose  of  the  award  at 
discretion,  they  would  not  have  used  the  words  "  legal  2inA 
sufficient."  By  the  use  of  these  words,  they  obviously 
intended  that  the  court  sliould  be  governed  by  recognized 
rules  of  law,  so  far  as  ap[)licable. 


OTTUMWA,  JUNE,  1849.        .  263 


Depew  V.  Davis. 


But  it  is  said  that  the  words  "  legal  and  sufficient  rea- 
son" occupy  such  a  position  in  the  sentence  that  they 
only  qualify  the  power  to  reject  the  award,  and  that  the 
power  to  recommit  may  therefore  be  exercised  at  the  will 
of  the  judge.  True,  according  to  the  strict  rules  of  syntax, 
tlie  power  to  recommit  is  not  qualified  by  those  words ; 
still  we  think  the  legislature  intended  such  qualification. 
If  not  expressed,  the  words  may  at  least  be  understood  as 
applicable  to  that  power.  As  implication  should  not  favor 
arbitrary  power,  but  should  support  legal  rules  and  prac- 
tice, we  have  no  difficulty  in  applying  the  qualification  to 
the  power  of  the  court  in  this  particular. 

The  fact  that  a  writ  of  error  will  lie  to  reverse  the  order 
of  rejection  or  recommitment  of  an  award,  adds  weight  to 
the  conclusion,  that  the  power  to  reject  or  recommit  is  not 
intended  to  be  exclusively  discretionary,  but  should  be 
exercised  according  to  fixed  rules  of  law.  A  v^i-it  of  error 
will  not  lie  to  review  or  regulate  a  power  which  is  merely 
discretionary.  A  case  should  only  be  reversed  on  error, 
when  some  rule  of  law  has  been  violated.  A  writ  of  error 
IS  only  applicable  to  a  decision  at  law,  and  not  to  a  de- 
cision at  will. 

In  giving  this  construction  to  that  section  of  the  statute, 
we  cannot  agree  with  counsel  for  the  plaintifi"  in  error,  that 
it  confers  no  power  on  our  district  courts  over  awards,  but 
such  as  they  might  exercise  at  common  law,  independent 
df  the  statute.  Unless  the  legislature  intended  to  confer 
other  and  additional  powers,  why  was  the  section  enacted? 
If  intended  merely  to  confirm  the  common  law  power 
which  the  court  already  possessed,  why  was  it  not  so 
expressed?  Clearly  the  legislature  intended  something 
by  the  section :  they  intended  to  confer  an  authority  which 
could  not  otherwise  be  exercised  by  the  district  courts  in 
relation  to  awards ;  they  intended  to  confer  an  additional 
authority,  a  sound  discretionary  authority,  to  be  regulated 
by  additional  "  legal  and  sufficient  reasons."  They  were 
still  authorized,  as  before  the  act,  to  reject  or  recommit, 
for  the  common  law  reasons  of  fraud  or  mistake,  or  want 


264  SUPREME  COURT  CASES, 

Depew  V.  Davis. 

of  jurisdiction ;  and  tliey  were  also  authorized  by  tlie  act 
to  reject  or  recommit  for  other  "  legal  and  sufficient  rea- 
sons." And  these  other  legal  and  sufficient  reasons  must 
))e  deduced  from  analogy  of  law  and  analogy  of  circum- 
stance. That  wliich  would  not  be  a  legal  reason  to  arrest 
;i  judgment,  set  aside  a  verdict,  or  grant  a  new  trial, 
should  not  be  considered  a  legal  reason  to  reject  or  re- 
commit an  award.  As  a  new  trial  should  always  be 
allowed  if  the  verdict  is  contrary  to  law,  or  works  mani- 
fest injustice  to  the  party  applying;  (Coo/i  v.  The  State, 
1  G.  Greene,  56 ;)  or  if,  by  any  reasonable  cause,  a  party 
has  not  been  able  to  present  the  merits  of  his  case  to  the 
jury ;  (Jones  v.  Femiimore,  ib.,  134  ;)  so,  for  like  legal  and 
sufficient  reasons,  should  an  award  be  recommitted  to 
arbitrator. 

But  little  inconvenience  can  result  to  the  parties  by  re- 
committing an  award  to  the  same  arbitrators,  as  it  would 
only  be  necessary  for  them  to  reconsider  the  points  upon 
which  it  was  returned  to  them ;  therefore  we  can  see  no 
good  reason  why  a  stronger  case  should  be  required  for 
the  recommitment  than  is  necessary  to  justify  a  new  trial. 
Where  legal  and  sufficient  reasons  induce  the  belief  in  the 
court  that  manifest  injustice  has  been  done  by  a  verdict, 
a  new  trial  should  be  granted ;  and  when  the  same  reasons 
justify  the  belief  that  like  injustice  has  been  done  by  an 
award,  it  should  be  recommitted. 

But  to  justify  a  court  in  rejecting  an  award,  we  think 
stronger  and  more  obvious  reasons  should  be  adduced. 
A  motion  to  reject  should  only  be  granted  where  a  want 
of  jurisdiction  is  apparent.  The  jurisdiction  of  arbitrators 
is  derived  from  the  contract  of  submission,  and  is  limited 
by  it.  There  is  a  want  of  jurisdiction  where  it  appears  that 
there  was  a  want  of  notice,  or  appearance  of  the  party ; 
where  more  or  less  has  been  considered  thau  was  sub- 
mitted; where  the  award  is  published  after  the  time 
limited,  or  where  it  is  partial  or  interlocutory,  when  re- 
quired to  be  complete  and  final.  If  the  arbitrators  kej)t 
strictly  to  their  jurisdiction,  we  think  their  award  should 


I 


OTTUMWA,  JUNE,  1840.  265 

Depew  V.  Davis. 

iioi  be  rejected.  But  where  it  appears  upon  the  face  of 
tiie  awai-d,  or  by  extrinsic,  legal  and  sufficient  proof,  that 
injusLice  has  been  done  in  any  important  particular,  the 
a\\'ard  should  be  recommitted. 

It  is  properly  urged,  that  as  awards  are  made  by  judges 
selected  by  the  parties  themselves,  they  are  entitled  to 
great  respect.  Arbitration  and  award  are  so  peculiarly 
appropriate  to  the  adjustment  of  complicated  accounts,  so 
well  calculated  to  avoid  expensis'e  and  protracted  litigation, 
so  simple  and  cheap  in  their  proceedings,  as  to  be  adapted 
to  every  state  and  condition  of  society,  and  so  well  cal- 
culated to  secure  peace,  harmony,  and  prosperity  in  all 
business  and  social  relations,  that  they  should  be  en- 
couraged by  every  enlightened  system  of  jm-isprudence. 
Still,  as  no  system  can  be  entirely  free  from  fraud,  mistake, 
or  injustice,  om-  statute  wisely  prevents  an  award  from 
being  regarded  conclusive  as  to  the  law  or  the  facts,  by 
providing  that  for  good  and  sufficient  reason  it  may  be 
rejected  or  recommitted. 

The  proof  submitted  to  the  court  below,  in  the  case  at 
bar,  as  before  remarked,  showed  that  the  party  had  dis- 
covered new  and  important  evidence  after  the  award  was 
made,  which  might  materially  change  the  result.  This 
would  have  been  a  legal  and  sufficient  reason  to  induce  a 
new  trial,  and  therefore  justified  the  court  in  recommitting 
the  award.  Besides,  from  the  state  of  the  record,  from 
the  fact  that  it  does  not  purport  to  give  all  the  evidence, 
we  may  infer  that  other  legal  and  sufficient  reasons  were 
submitted  to  the  consideration  of  the  court,  which  justified 
the  recommitment. 

Judgment  affirmed. 

C,  Olney,  for  plaintifi"  in  error. 

J,  C,  Hall^  for  defendant. 

Vol.  II.  18 


266  SUPREME  COURT  CASES, 


"Wrisiht  V.  Ross, 


WRIGHT  V.  ROSS. 

The  action  of  detinue  will  lie  in  Iowa,  and  may  be  maintained  for  a  pistol, 

or  any  other  chattel  that  may  be  so  identified  as  to  be  recovered  in  specie. 
A  statement  before  a  justice  of  the  peace  is  sufficiently  specific  in  detinue, 

which  describes  the  property  as  "  a  six  barreled  pistol,  called  a  six  shooter 

or  revolver." 
Tiie  ofificial  return  of  a  justice  cannot  be  impeached  by  the  mere  traverse 

plea  of  a  party  or  his  attorney,  where  the  record  shows  no  evidence  to 

support  it. 
Where  property  is  taken  from  a  borrower  M,  by  unavoidable  force,  and  the 

bailor  seeks  to  recover  it  in  detinue  from  W,  it  was  held  that  M  is  a  com. 

petent  witness  for  the  bailor. 

Error  to  Wapello  District  Court. 

Opinion  by  Greene,  J.  W.  G.  Ross  commenced  an 
action  of  detinue  before  a  justice  of  the  peace,  to  recover  a 
pistol  from  G.  M.  Wright.  Plaintiff  recovered  judgment, 
and  the  defendant  took  the  case  to  the  district  court  by 
writ  of  certiorari,  where  the  judgment  of  the  justice  was 
affirmed.  Upon  the  trial  of  the  certiorari,  the  following 
questions  were  raised  and  decided  in  the  affirmative: 
1.  Is  a  pistol  such  property  as  may  be  sued  for,  in  an 
action  of  detinue  ?  2.  Is  the  description  of  the  property 
sufficiently  specific?  3.  Was  May  a  competent  witness 
for  Ross?  It  is  now  contended,  that  these  propositions 
should  have  been  decided  in  the  negative,  and  that  the 
judgment  of  the  justice  should  have  been  reversed.  As 
these  points  were  respectively  urged  in  the  argument,  we 
will  give  to  each  a  brief  notice. 

1.  Is  a  pistol  such  property  as  may  be  sued  for  in  an 
action  of  detinue?  This  action  has  nearly  fallen  into 
disuse,  and  has  given  place  to  the  more  usual  actions  of 
replevin  or  trover.  Still  it  is  not  forbidden  by  statute,  nor 
is  it  altogether  obsolete,  and  may  therefore  be  maintained 
by  our  courts  where  properly  instituted.  Detinue  can  only 
be  maintained  for  the  recovery  of  a  personal  chattel  in 
specie.     Stephen  on  PI.,  16.     The  thing  sought  to  be  re- 


OTTUMWA,  JUNE,  1849.  267 

Wright  V.  Ross. 

covered,  then,  must  be  capable  of  being  distinguislied  from 
all  others.  A  horse,  a  cow,  a  slave,  &c.,  are  objects  that 
were  commonly  recovered  in  this  action.  But  it  has  been 
held,  that  the  action  will  not  lie  for  a  bushel  of  grain,  nor 
for  any  article  that  cannot  in  its  nature  be  distinguished 
from  others.  Co.  Litt.,  286,  b;  3  Bk.  Com.,  152.  The 
goods  sought  must  be  so  distinguishable  from  other 
property  that,  if  the  plaintiff  recover,  the  sheriff  may  be 
able  to  deliver  the  identical  goods  to  him.  1  Chit.  PI., 
121-3.  Hence  a  deed,  or  money,  or  corn  in  a  bag  or  chest, 
may  be  recovered  in  this  action. 

The  question  arises,  Is  "  a  six  barreled  pistol,  called  a 
six  shooter  or  revolver,"  so  distinguishable  as  to  come  with- 
in the  rule  laid  down  by  the  authorities  ?  If  such  a  pistol 
can  be  readily  identified,  if  it  can  be  certainly  ascertained 
from  other  pistols,  and  proved  to  be  the  specific  property 
sued  for,  it  clearly  follows  that  it  is  such  a  chattel  as  may 
be  recovered  in  an  action  of  detinue.  A  six  shooter  or 
revolving  pistol  may  be  as  readily  designated  as  a  horse, 
a  cow,  a  slave,  a  bag  of  money,  or  a  sack  of  wheat ;  and 
for  all  these  objects  detinue  has  been  commonly  main- 
tained. It  was  held  in  Mansell  v.  Israel^  3  Bibb.,  510, 
that  detinue  will  lie  against  executors  or  administrators, 
for  money  obtained  by  them  in  that  character. 

It  has  been  held,  that  detinue  will  lie  for  a  negro  woman 
by  na*ne  without  stating  her  complexion  or  age ;  also  for 
a  cow  without  describing  her  color,  or  for  a  certain  number 
of  knives  and  forks  without  a  particular  description. 
Ilaynes  v.  Crutchjield,  7  Ala.,  189.  If  such  articles  can 
be  sufiiciently  identified  to  justify  the  action  of  detinue,  it 
is  obvious  that  an  object  so  rare  as  a  revolving  pistol  will 
come  within  the  rule. 

2.  The  next  question  raised  is,  Does  the  complaint  filed 
beiore  the  ^^ustice  set  forth  a  sufiiciently  explicit  description 
ot  tlie  property?  It  is  described  as  "a  six  barreled  pistol, 
called  a  six  shooter  or  revolver."  This  description,  it  is 
true,  is  rather  general ;  it  is  not  as  specific  as  it  might 
have  been,  it  is  more  descriptive  of  the  class  to  which  the 


SUPHEME  COURT  CASES, 


Wriirht  v  Ross. 


pistol  belongs  than  of  the  pistol  itself.  But  still  we  think 
the  description  substantially  sufficient,  even  if  the  action 
had  been  commenced  in  the  district  court.  The  description 
is  as  specific  as  is  ordinarily  required,  either  in  trover 
or  detinue.  Swan's  Pr.,  585,  589,  note  1.  In  Haines  v. 
Crutchjield^  7  Ala.,  189,  a  much  more  general  description 
was  held  to  be  good.  » 

Besides,  this  case  was  commenced  before  a  justice  of 
the  peace,  where  nothing  more  than  a  brief  statement  of 
the  nature  of  the  plaintiff's  demand  or  cause  of  action  is 
required.     Rev.  Stat.,  314,  §  1. 

3.  It  is  objected  that  May,  an  interested  witness,  was 
permitted  to  testify  in  behalf  of  plaintiff.  It  aj)pears  by 
the  justice's  amended  transcript,  that  May  was  offered  as 
a  witness,  and  that  defendant's  counsel  required  him  to  be 
sworn  as  to  his  interest  in  the  event  of  the  suit;  that  wit- 
ness answered,  that  he  did  not  consider  himself  interested, 
and  that  plaintiff  offered  to  execute  a  release  to  witness, 
but  it  was  not  required  by  defendant's  counsel. 

The  return  was  traversed  by  defendant's  counsel.  This 
traverse  states,  that  May  swore  that  he  borrowed  the  pistol 
of  Ross,  and  that  it  had  been  unexpectedly  wrested  from 
him  by  Wright,  in  whose  possession  it  was,  and  that  as 
Ross  had  sought  a  specific  recovery  of  the  pistol  from 
Wright,  he  did  not  consider  himself  responsible  to  Ross. 
It  does  not  appear  that  there  was  any  evidence  to  support 
the  traverse.  The  court  decided,  that  this  traverse  did 
not  show  that  the  justice  had  erred.  In  this  decision  we 
can  see  no  error.  The  official  return  of  a  justice  cannot 
be  impeached  by  the  mere  traverse  plea  of  a  party  or  his 
attorney.  But  even  the  traverse  does  not  show  that  May 
was  an  incompetent  witness.  It  shows  that  the  pistol  had 
been  unexpectedly  wrested  from  May  by  Wright.  It  is  a 
rule  of  law,  that  if  a  borrowed  article  perish,  or  be  lost  or 
injured  by  theft,  accident  or  casualty,  which  could  not  be 
foreseen  or  avoided,  the  borrower  is  not  liable.  2  Kent's 
Com. ,  574  ;  Story  on  Bt. ,  §  240.  In  such  a  case  the  utmost 
care  must  be  exercised  by  the  bailee;  he  is  liable  for  slight 


I 


OTTUMWA.  JUNE.  1849.  269 

Wright  V.  Ross. 

neglect.  It  may  well  be  doubted  whether  May's  answer 
on  voire  dire,  shows  such  neglect ;  it  shows  that  the  pro- 
perty had  been  forcibly  wrested  from  him,  and  was  in 
possession  of  the  defendant,  from  whom  it  might  be 
specifically  recovered.  The  plaintiff,  knowing  where  his 
property  was,  preferred  such  a  recovery  to  an  uncertain 
remedy  against  May  :  and  it  appears  by  the  return  of  the 
justice,  without  denial,  that  plaintiff  proposed  to  release 
May,  and  that  thereupon  he  was  permitted  to  testify 
without  further  objection.  Admitting  the  traverse  io  ha 
correct,  we  think,  under  all  the  circumstances,  that  the 
court  decided  correctly  in  affirming  the  proceedings  of 
the  justice. 

Judgment  affirmed. 

//.  B.  Hendershott  and  B.  Jones^  for  plaintiff  in  error. 

James  Baker ^  for  defendant 


CASES  IN  LAW  AND  EQUITY, 


DETEBUINED  IK  THB 


SUPREME  COURT  OF  THE  STATE  OF  IOWA, 

IOWA  CITY,  JUNE  TERM,  A.D.  1849, 
In  the  Third  Year  of  the  State, 


Hon.  JOSEPH  WILLIAMS,  Chief  Juttiet, 
Hon.  JOHN  F.  KINNEY,  )    .    ,_ 
Hon.  GEO.  GREENE,         \  •'"»^"- 


HARRIMAN  v.  THE  STATE. 

The  act  of  1839,  authorizing  district  judges  to  hold  special  terms  of  conrt 
whenever  they  deem  it  necessary,  was  not  repealed  by  subsequent  acts 
passed  to  fix  and  change  the  time  for  liolding  court.  The  eighth  section 
of  said  act  is  not  repugnant  to  the  organic  law,  nor  to  the  state  constitu- 
tion of  Iowa. 

Statutes  in  pari  materia  should  be  taken  together  as  one  law,  and  should,  if 
practicable,  be  so  construed  that  every  provision  shall  contmue  in  force. 

In  a  question  of  construction,  all  doubt  should  favor  the  validity  of  a  law 
under  which  rights  have  been  acquired. 

Notice  of  a  special  term,  as  directed  by  the  act  of  1839,  is  not  an  essential 
prerequisite  to  confer  jurisdiction.  Tiie  statute  providing  for  the  notice 
ifl  directory.  It  will  be  presumed  that  the  notice  was  given,  even  if  the 
VBCord  does  not  state  the  fact. 


I 


IOWA  CITY,  JUNE,  1849.  271 


Harriman  v.  The  State, 


"State  of  Iowa"  and  "  The  State  of  Iowa"  are  substantially  synonymous 
terms. 

Where  an  indictment  appears  to  have  been  exhibited  in  open  court,  by  the 
grand  jury,  and  is  indorsed  "a  true  l)ill"  over  the  signature  of  the  fore- 
man, it  is  conclusive  evidence  that  it  was  duly  found  by  a  legal  grand 
jury. 

American  courts  have  dispensed  with  many  of  the  stringent  rules  and  nice 
technicalities  which  formerly  obtained  in  the  English  courts  in  criminal 
cases. 

The  record  proper  in  a  criminal  case,  after  stating  the  time  and  place  of 
holding  court,  need  only  set  forth  the  indictment,  properly  indorsed  as 
found  by  the  grand  jury  ;  the  arraignment  of  the  accused  ;  his  plea  ;  the 
impanneling  of  the  traverse  jury  ;  their  verdict ;  and  the  judgment  of  the 
court. 

Any  decision  of  a  court  made  preliminary  to  a  final  judgment,  is,  per  se,  a 
part  of  the  record  ;  but  all  other  proceedings,  such  as  motions,  exceptions, 
testimony  and  the  like,  are  no  part  of  the  record  unless  made  so  by  order 
of  the  court,  by  agreement  of  the  parties,  by  demurrer  to  evidence,  by 
special  verdict  or  by  bill  of  exceptions. 

Only  such  matters  as  are  of  record  can  be  brought  to  the  notice  and  review 
of  this  court. 

Irregularity  in  proceedings  is  waived  by  pleading  and  submitting  to  a 
verdict  without  objection. 

Where,  on  account  of  prejudice,  interest,  or  other  objection,  the  sheriff  la 
rendered  incompetent,  the  coroner  should  perform  his  duty  ;  but  if  the 
party  objecting  to  the  sheriff  asks  the  court  to  appoint  an  elisor,  he  by 
implication  manifests  an  objection  to  the  coroner  also,  Avhich  will  justify 
the  court  in  appointing  an  elisor. 

Where  a  jury  was  summoned  by  the  sheriff  after  the  prisoner  made  affidavit 
that  the  sheriff  was  prejudiced  against  him,  but  the  jury  was  not  objected 
to  until  after  the  verdict,  it  was  held  that  the  objection  came  too  late,  and 
that  the  irregularity  was  waived. 

If  a  case  is  not  submitted  to  the  jury  impanneled  at  a  regular  term  to  try  the 
case,  a  second  jury  may  be  impanneled  for  the  trialat  a  subsequent  term. 

A  prisoner  should  be  present  at  his  trial,  and  when  the  verdict  is  pro- 
nounced. 

Where  the  record  shows  that  the  prisoner  was  regularly  arraigned,  that  he 
was  brought  into  court,  and  took  bills  of  exceptions,  it  sufficiently  shows 
his  presence  during  the  trial. 

The  names  of  the  witnesses  on  whose  evidence  an  indictment  is  found, 
should  be  indoi'sed  on  every  true  bill  returned  by  the  grand  jury ;  bui. 
they  need  not  be  made  a  part  of  the  record. 

Many  legal  forms  and  technicalities  possess  marked  utility  in  practice. 

Where  the  oath  required  by  statute  is  in  substance  administered  to  a  jury, 
it  is  sufficient. 

Where  tlie  jury  are  "  sworn  the  truth  to  speak  upon  the  issue  joined  between 
the  partes,"  it  is  not  sufficient,  in  a  trial  for  murder. 


272  SUPREME  COUHT  CASES, 


Harriman  v.  The  State. 


Error  to  Washington  District  Court. 

Opinion  hy  Greene,  J.  In  tliis  case,  John  C.  Harri- 
man was  indicted  for  murdering  one  David  N.  Miller. 
It  appears  that  the  prisoner,  on  being  arraigned,  pleaded 
not  guilty ;  and  thereupon  the  court  proceeded  to  impannel 
a  jury.  Tlie  defendant  then  made  application  for  a  con- 
tinuance, Avhich  was  granted.  Subsequently,  October  30, 
1848,  a  special  term  of  the  district  court  was  held.  Upon 
an  affidavit  previously  filed  by  the  defendant,  that  the 
sheriff  was  prejudiced  against  him,  one  Robert  Rinkade 
was  appointed  elisor  to  return  a  jury.  Only  eight  of  the 
jurors  were  impanneled  on  the  first  day  of  the  term,  and 
they  were  placed  in  charge  of  the  elisor,  with  directions 
that  they  should  not  be  separated,  and  to  have  them  in 
court  on  the  following  morning.  On  the  second  day  the 
panel  of  jurors  was  completed,  and  sworn  "  the  truth  to 
speak  on  the  issue  joined  between  the  parties."  The  ex- 
amination then  commenced,  but  not  being  completed,  the 
jmy  was  placed  under  the  charge  of  the  elisor  for  the  night, 
to  be  returned  into  court  the  next  morning.  The  cause 
was  submitted  to  the  jury  on  the  evening  of  the  third  day, 
when  they  retired  in  charge  of  the  elisor  to  consider  their 
verdict,  and  on  the  fourth  day  retm'ned  a  verdict  of  guilty 
as  charged  in  the  indictment.  Motions  in  arrest  of  judg- 
ment and  for  a  new  trial  were  made  and  overruled ;  and  a 
judgment  in  due  form  and  sentence  of  execution  were 
rendered  against  the  prisoner. 

To  the  proceedings  in  this  case  there  are  twelve  errors 
assigned ;  the  most  material  of  which  we  will  proceed  to 
examine. 

1.  It  is  contended  that  the  special  term  of  court  was  not 
authorized  by  law,  and,  as  a  consequence,  all  the  proceed- 
ings in  the  case  are  coram  non  judice.  This  position  is 
clearly  correct  if  the  judges  of  the  district  court  were  not 
authorized  by  statute  to  appoint  special  terms  of  their 
courts.      In  J.'uuinry,  1839,  an  act  Avas  passed,  fixing  tlio 


IOWA  CITY,  JUNE,  1849.  273 

Harriman  v.  The  State. 

terms  of  the  district  coui'ts ;  dividing  tlie  territory  into 
three  judicial  districts,  assigning  them  to  the  respective 
judges;  authorizing  them  to  exchange  disti'icts  as  often  as 
they  might  agree  to  do  so,  and  to  hold  com-ts  in  each  other's 
district  in  cases  of  absence  or  sickness ;  and  also  autho- 
rizing each  judge  to  hold  a  special  term  of  the  district 
€ourt  whenever  he  should  deem  it  necessary,  for  the  trial 
either  of  civil  or  criminal  causes.  Statute  of  1839,  y.  128. 
In  the  year  following,  acts  were  passed  changing  the  time 
of  holding  courts  in  all  the  districts,  but  interfering  in  no 
other  particular  with  the  act  of  1839.  In  1843,  another 
change  was  made  in  the  time  of  holding  courts  in  the 
second  district ;  and  by  statute  of  1846,  p.  12,  new  counties 
were  attached  to  each  district,  and  the  time  was  again 
changed.  By  the  fifth  section  of  this  statute  all  contra- 
vening enactments  were  repealed.  There  was  no  feature  in 
this  act  contrary  to  that  of  1839,  which  empowered  the 
judges  to  exchange  districts,  and  to  hold  special  terms  of 
court ;  consequently  these  sections  continued  still  in  force. 
Again,  by  the  laws  of  1847,  p.  74,  a  general  change  was 
made  in  the  time  and  an  additional  district  formed ;  and 
finally  by  statute  of  1848,  p.  51,  an  act  fixing  the  times 
and  places  of  holding  the  district  courts  in  the  first  judicial 
district  was  passed,  providing  that  in  Washington  county 
it  should  be  held  on  the  second  Monday  in  March  and 
on  the  first  Monday  in  September.  It  is  strenuously 
urged  that,  as  this  act  expressly  fixed  the  time  and  place 
of  holding  court,  and  provides  for  no  special  terms,  that 
the  district  judge  had  no  legal  power  to  hold  such  a  term ; 
that  these  various  changes  in  times  of  holding  the  courts, 
and  in  the  size  and  number  of  the  districts,  have  effected 
a  complete  repeal  of  the  statute  first  cited ;  but  in  what 
manner  or  by  what  provision  of  law  this  complete  repeal 
is  effected  we  are  unable  to  comprehend.  In  all  these 
changes,  and  in  our  transposition  from  territorial  to  state 
government,  we  see  nothing  that  seriously  affects  the  fifth, 
sixth,  and  eight  sections  of  the  act  of  1839.  Their  abro- 
gation, however  adroitly  argued,  cannot  be  legitimately 


274  SUPREME  COURT  CASES, 

Harriman  v.  The  State. 

assumed  from  any  of  the  reasons  and  references  wliicli  have 
been  submitted  to  cm-  consideration.  They  still  stand 
before  us  in  bold  relief  as  the  sovereign  will  of  the  legis- 
lature, perfectly  compatible  with  subsequent  enactments, 
in  pari  materia,  and  we  cannot  therefore  regard  them  as 
reiicaled  by  the  speculative  rules  of  construction  which 
counsel  have  so  ingeniously  applied.  It  must  be  conceded 
that  acts,  m  pari  materia^  should  be  taken  together  as 
one  law,  and  so  construed,  if  practicable,  that  every  pro- 
vision shall  continue  in  force.  Pearce  v.  Atwood,  13 
Mass.,  324,  344;  Holhrook  v.  Holbrook,  1  Pick.,  248,  254; 
Haynes  v.  Jenks,  2  Pick.,  1 72,  176  ;  U.  States  v.  Freeman^ 
3  Howard,  556 ;  Hays  v.  Hanson,  12,  N,  H.,  284 ;  Morris 
V.  The  D.  ^^  S.  Canal,  4,  Watts  &  Serge.,  461 ;  Harrison 
V.  Walker,  1  Kelly,  32. 

Again,  it  is  quoted  in  the  books  as  a  general  and  un- 
controverted  principle,  that  "  although  two  acts  are  seem- 
ingly repugnant,  yet  they  shall,  if  possible,  have  such 
construction  that  the  latter  shall  not  repeal  the  former  by 
implication."  Bac.  Abr.  Statute  D;  Foster  s  case,  11  Coke, 
63  ;  Weston's  case,  Dyer,  347.  And  we  have  it  from  quite 
recent  authority  that  the  law  does  not  favor  repeals  by 
implication.  Locker  v.  Brookline,  13  Mass.,  342,  348; 
Wyman  v.  Campbell,  6  Port.,  219;  Goddardw  Boston,  20 
Pick.,  407,  410;  McCartler  v.  Orphan  Asylum  Society,  9 
Cowen,  437,  506;  Bowen  v.  Lease,  5  Hill.,  221,  225. 

Properly  observing  the  rules  which  prevailed  in  the 
foregoing  cases,  and  applying  them  with  all  theu*  force  of 
analogy  to  the  question  under  consideration,  we  cannot 
suppose  a  well  founded  doubt  can  be  entertained  that 
those  three  sections  of  the  statute  of  1839  are  still  in  force, 
and  that  our  district  judges  possess  the  legal  power  of 
ap})ointing  and  holding  special  terms  of  their  courts. 

The  law  of  1848,  p.  21,  conferring  additional  powers  on 
the  judge  of  the  second  judicial  district  to  adjourn  regular 
terms  as  fixed  by  law,  in  order  to  hold  special  terms  at 
the  same  time,  is  i-eferred  to  as  an  argument  favoring  the 
repeal  'if  the  statute  of  1839.     But  Ave  are  unable  to  see 


IOWA  CITY,  JUNE,  1849.  275 

Harriman  v.  The  State. 

mncli  force  or  application  in  this  reasoning.  The  new 
statute  has  no  relation  or  reference  to  the  former  enact- 
ment. The  old  law  is  general  in  its  application,  confer- 
ring powers  and  duties  generally  upon  the  judges  of  the 
district  courts ;  it  is  confined  to  no  particular  judge  or 
number  of  judges,  but  has  a  jurisdiction  co-extensive  with 
the  state.  The  new  law  is  confined  to  one  particular  dis- 
trict, and  confers  upon  its  judge  powers  unauthorized  by 
the  general  statute.  How  can  the  latter  then  be  regai'ded 
as  a  repeal,  even  by  intendment  of  the  former  statute,  or 
be  construed  into  a  rational  supposition  that  the  legislature 
regarded  it  as  repealed,  even  if  their  regarding  a  law  as 
repealed  would  make  it  so?  The  courts,  the  proj)er  tribu- 
nals to  judge  of  the  force  and  effect  of  statutes,  have  by 
contemporaneous  construction  and  judicial  action  recog- 
nized the  existence  and  vitality  of  that  statute;  and  hence, 
if  this  could  be  regarded  as  a  question  of  doubtful  con- 
struction, that  doubt,  from  motives  of  public  convenience 
and  policy  should  favor  the  validity  of  the  law,  in  order 
to  preserve  undisturbed  the  rights  of  parties  and  titles 
to  property  which  have  been  adjusted  under  its  usage. 
Rogers  v.  Goodmn,  2  Mass.,  475,  Opn.  of  the  Justices,  3 
Pick.,  517  ;  Seals  v.  Hale,  4  How.,  U.  S.,  37  ;  The  People 
V.  Canal  Commissioners,  3  Scam,,  153,  160;  and  again  in 
this  case  the  rule,  that  a  long  and  uninterrupted  practice 
under  a  statute  is  good  evidence  of  its  construction,  must 
have  its  force.  McKeer  v.  Delaney,  5  Cranch,  22 ;  Morri- 
son  V.  Barksdale,  Harper,  101. 

But  it  is  insisted  that,  if  the  eighth  section  of  the  act  of 
1839  has  not  been  otherwise  abrogated,  it  was  repealed 
by  the  constitution  in  1847,  which  continued  in  force  such 
territorial  laws  only  as  were  not  repugnant  to  the  consti- 
tution ;  that  as  our  state  judicial  system  is  not  as  the  ter- 
ritoral  system  was,  and  there  having  been  a  general  change 
in  the  extent  and  number  of  the  districts,  and  in  the 
powers  and  number  of  the  judges,  the  law  in  question  is 
rejiugnant,  and  therefore  inoperative.  But  we  can  see 
nothing  in  it  repugnant  to  the  constitution,  or  inconsistent 


276  SUPREME  COURT  CASES, 

Harriman  v.  The  State. 

with  our  new  form  of  government.  We  are  unable  to 
perceive  liow  the  change  so  often  adverted  to  by  counsel 
can  so  seriously  affect  the  law  in  question.  Indeed,  the 
same  arguments  would  apply  with  equal  force  to  vitiate 
all  territorial  laws  at  the  adoption  of  the  constitution. 

Finally,  it  is  objected  that  the  legislature  of  the  terri- 
tory had  no  right  under  the  ninth  section  of  the  organic 
law  to  pass  an  act  authorizing  the  judges  to  hold  such 
special  terms  of  the  district  court,  as  they  were  by  said 
section  to  be  held  "  at  such  times  and  places  as  might  be 
prescribed  by  law."  Strictly  viewing  this  clause,  it  may 
very  plausibly  be  assumed  that  the  courts  could  be  held  at 
such  times  only  as  the  appropriate  law  might  fix  upon  and 
designate.  The  application  of  this  principle  might  safely 
be  admitted  so  far  as  the  regular  terms  of  the  courts 
are  concerned ;  and  this  concession  would  not  in  the  least 
militate  against  the  power  of  the  legislature  to  authorize 
the  judges  to  hold  special  or  extra  terms  of  their  courts, 
whenever  in  their  opinion  occasion  might  require.  This 
would  be  a  rightful  subject  of  legislation  within  the  mean- 
ing of  the  organic  law,  and  within  the  province  of  the  legis- 
lative assembly.  But  had  the  legislature  conferred  upon 
the  judges  by  statute  authority  to  prescribe  the  times 
generall}''  of  holding  their  courts,  would  it  not  still  be  done 
by  authority  of  law  ?  It  would  still  be  a  regulation  ema- 
nating from  the  supreme  legislative,  and  only  authorized 
power  within  the  general  spirit  and  meaning  of  the  organic 
law,  if  not  within  its  strict  letter.  It  is  not,  however, 
in  this  discussion  necessary  to  inquire  further  into  the 
power  of  the  legislature,  than  that  which  has  been  exer- 
cised in  authorizing  the  judges  to  hold  special  terms  of 
courts.  And  upon  this  point,  as  already  assumed,  we  can 
entertain  no  doubt.  It  is  a  power  that  never  was  judicially 
questioned,  under  the  territorial  organization,  and  has 
been  too  long  acted  upon  to  be  now  successfully  contro- 
verted. The  authority  to  hold  special  terms  should  never 
be  withheld  from  a  court ;  it  may  be  regarded  as  a  right, 
which  a  court  of  general  jurisdiction  should  exercise  ex 


1 


IOWA  CITY,  JUNE,  1849.  277 

Harriman  v.  The  State. 

q^cio  ;  it  frequently  becomes  indispensable  in  the  admin- 
istration of  justice,  and  especially  in  extending  to  the 
accused  in  criminal  prosecutions  his  constitutional  ''right 
to  a  speedy  and  public  trial." 

Another  objection  was  urged  to  this  special  term,  to 
which  we  will  merely  advert.  It  is  contended,  that  if  the 
court  was  legally  empowered  to  hold  a  special  term,  it  was 
in  this  instance  done  without  authority  of  law,  because  it 
does  not  appear  by  the  record  that  the  judge  notified  the 
sheriff  of  the  same,  or  that  the  sheriff  put  up  at  each  of 
the  precincts  in  the  county  at  least  three  weeks'  notice  of 
the  time  when  the  special  term  was  to  commence.  As  de- 
cided by  this  court  time  and  again,  we  must  necessarily 
presume  that  the  officers  of  the  court  performed  their  duty 
in  such  particular,  unless  the  contrary  ajDjDcars.  An  aver- 
ment of  such  facts  in  a  record  is  not  necessary.  The  re- 
cord being  silent,  the  fact  that  legal  notice  was  given  is 
established  by  intendment.  There  is  another  reason  why 
this  objection  cannot  now  i^revail,  even  if  affirmatively 
before  us.  It  does  not  appear  to  have  been  raised  in  the 
court  below ;  but  was  silently  acquiesced  in,  and  waived. 
The  proceedings  of  the  court  without  such  notice  were  not 
void.  The  statute  j)roviding  for  it  is  merely  directory, 
and  such  notice  is  not  considered  an  essential  prerequisite 
to  confer  jurisdiction.  Friar  v.  The  State,  3  How.  Miss., 
422.  Such  notice,  however,  being  particulary  important 
as  a  safeguard  to  the  public,  and  especially  to  those  who 
may  be  affected  by  apy  special  term,  it  should  never  be 
dispensed  with  by  the  courts  ;  but  the  want  of  it  should 
always  be  taken  advantage  of  within  a  reasonable  time, 
and  at  the  proper  place.  On  thus  considering  the  objec- 
tions raised  to  the  special  term,  we  must  conclude  that  it 
was  authorized  by  law. 

2.  It  is  assigned  as  error,  and  urged  that  the  prosecu- 
tion is  not  conducted  in  the  name  and  by  the  authority  of 
"  the  state  of  Iowa,"  as  required  by  the  sixth  section  in 
the  sixth  article  of  the  constitution.  It  appears  that  in 
most  of  the  proceedings  the  article  "  the  "  is  omitted,  run- 


278  SUPREME  COURT  CASES, 

Harriman  v.  The  State. 

iiing  in  the  name  of  "  state  of  Iowa,"  instead  of  "  the  state 
of  lorca.''''  These  terms  are  essentially  the  same.  The 
words  used  designate  the  party  and  the  state  so  clearly 
that  they  cannot  possibly  be  mistaken  for  any  other  party, 
state  or  object.  The  short  style,  State  of  Iowa,  is  recog- 
nized in  the  preamble  and  first  article  of  the  constitution. 
Thc}^  appear  to  have  been  regarded  by  the  framers  of  that 
instrument  as  synonymous  terms,  and  to  have  been  used 
indiscriminately  as  the  same.  Indeed  the  difference  is  so 
tritiing,  the  defect  in  form  so  very  minute  and  immaterial, 
that  we  cannot  regard  it  as  worth}'  of  serious  consideration, 
especially  at  this  late  hour — the  objection  not  having  been 
raised,  but  silently  acquiesced  in,  before  the  district  court. 

3.  The  objection  is  raised,  that  the  record  does  not  set 
forlh  that  the  indictment  was  found  by  a  legal  grand  jury, 
nor  does  it  contain  then-  names.  It  appears  by  the  record, 
that  the  indictment  was  exhibited  in  open  court  by  the  grand 
jury,  and  over  the  signature  of  their  foreman  indorsed  "a 
true  bill."  Upon  that  j^oint,  the  record  states  all  that  is 
necessary,  all  that  is  required  by  the  established  practice 
and  usage  of  our  courts.  The  certificate  of  the  foreman, 
affirming  it  to  be  a  true  bill,  is  evidence  conclusive  and 
proper  that  it  was  duly  found  by  a  legal  grand  jury.  Spratt 
v.  The  State,  8  Mis.,  247.  If  the  requisite  number  of  law- 
ful grand  jurors  had  not  participated  in,  and  favored  the 
finding  and  presentment,  it  would  not  be  "  a  true  bill," 
as  authenticated  by  the  certificate  of  the  foreman.  Rev. 
Stat.,  297,  §  3 ;  Turns  v.  Commo7imealth,  6  Metcalf,  225, 233. 

It  is,  we  believe,  in  pursuance  of  the  English  practice,  and 
a  i)revailing  custom  in  all  the  states  of  this  Union,  for  the 
grand  jurors  to  present  the  bills  found  by  them  in  open 
court,  where  they  openly  acquiesce  in  the  finding;  and  this 
becomes  another  proper  and  strong  item  of  evidence  that 
the  bill  was  found  pro2)erly  and  by  the  required  number 
of  jurors.  Hence  in  The  State  v.  Crighton,  1  Nott  & 
McCord,  S.  C,  256,  it  M^as  held  that  the  finding  of  a  grand 
jnry,  having  been  announced  by  the  clerk  in  their  pre- 
sence, IS  good,  although  not  signed  by  the  foreman  accord- 


IOWA  CITY,  JUNE,  1849.  279 

Harriman  v.  The  State. 

ing  to  the  usual  practice.  A  decision  to  the  same  effect 
has  been  made  in  our  territorial  supreme  court.  Wau/iO?i- 
chaw-neck-kaw  v.  The  United  States,  Morris,  332.  The 
rules  of  practice  recognized  by  this  decision  we  do  not 
feel  disposed  to  depart  from.  Their  propriety  and  expe- 
diency not  having  been  questioned,  they  have  been  generally 
concurred  in  by  our  courts.  In  that  case,  the  court  were 
very  j)roperly  of  the  opinion  that  the  names  of  the  grand 
jurors  need  not  be  inserted  in  the  transcript  of  a  record 
from  the  district  court,  and  that  other  forms  analogous  to 
the  English  practice  might  be  dispensed  with.  The  cases 
cited  by  counsel  from  Howard's  Miss.  Reports  apj)ear  to 
have  been  predicated  upon  the  old  English  authorities. 
But  we  have  long  since  dispensed  with  many  of  the  strin- 
gent rules  and  nice  technicalities  which  the  courts  cf  tliat 
country  in  mercy  established,  to  shield  and  protect  the 
prisoner  against  the  harsh  and  sanguinary  penalties  of 
their  criminal  code  for  light  and  often  trivial  offences. 
Under  the  extreme  severity  of  laws,  which  appeal*  to  have 
been  enacted  without  the  slightest  regard  to  human  life, 
and  under  regulations  which  did  not  secm'e  counsel  to  the 
prisoner,  and  seldom  a  prompt,  fair,  impartial  trial,  no 
wonder  that  merciful  judges,  under  the  promptings  of 
humanity,  and  being  regarded  especially  as  protectors  and 
counsel  for  the  accused,  should  seize  at  trifling  and  unim- 
portant objections  to  save  the  lives  of  those  who  may  have 
been  arrested  for  ordinary  and  often  doubtful  offences. 
But  in  this  country,  where  life  and  liberty  are  so  tena- 
ciously guarded  by  our  constitutions  and  laws,  where  a 
speedy,  public  and  impartial  trial  is  uniformly  secm'ed  to 
the  accused,  where,  though  destitute  of  friends  or  means, 
he  is  furnished  with  able  counsel  at  public  expense,  and 
with  compulsary  pi  ocess  to  secure  the  attendance  of  his 
witnesses,  and  at  ail  times  entitled  to  confront  his  accusers 
face  to  face ;  here  where  the  accused  is  entitled  to  greater 
privileges  than  the  prosecution  in  every  stage  of  a  criminal 
proceeding,  the  reason  for  such  extreme  technicality 
and  unmeaning  precision  ceases  to  exist.     The  profound 


280  SUPREME  COURT  CASES, 

Harriman  v.  The  State. 

policy  of  the  law  will  not  justify  the  continuance  of  a  ru'e 
after  all  the  reasons  for  it  have  disappeared. 

Recent  decisions  in  England  show  a  commendable  re- 
laxation from  those  rigid  technical  rules  which  had  been 
there  adopted.  These  have  resulted  from  the  humane 
modification  of  their  criminal  code,  which  is  becoming 
more  characteristic  of  an  enlightened  Christian  govern- 
ment, and  more  comformable  to  the  wise  and  just  princi- 
ples of  the  common  law.  In  TAe  King  v.  Marsh,  Adolph 
k  Ellis,  236,  we  have  a  decision  in  point  showing  that  the 
English  courts  are  ameliorating  their  old  teojmical  rules 
to  a  rational  standard.  It  was  in  that  case  decided  that 
the  number  and  names  of  the  grand  jurors  need  not  be 
inserted  in  the  caption  of  an  indictment. 

While  upon  this  point,  in  order  to  settle  the  practice 
and  avoid  controversy,  it  may  be  well  for  us  to  express 
our  views  as  to  the  essential  ingredient  of  a  transcript 
from  the  record  in  criminal  cases,  when  brought  to  this 
court  for  the  correction  of  errors.  McKinney  v.  The 
People,  2  Gil.,  540,  551,  in  an  excellent  opinion  delivered 
by  Judge  Lockwood,  and  which  is  in  many  particulars  ap- 
propriate to  the  case  at  bar,  it  is  stated  that,  "in  a  crimi- 
nal case,  after  the  caption  stating  the  time  and  place  of 
holding  court,  the  record  should  consist  of  the  indictment, 
properly  indorsed,  as  found  by  the  grand  jury;  the  ar- 
raignment of  the  accused,  his  plea,  the  impanneling  of 
the  traverse  jury,  their  verdict,  and  the  judgment  of  the 
court.  This  is  all,  in  general,  that  the  record  need  state." 
This  we  consider  a  safe  rule,  comprehending  all  that  is 
necessary  to  be  enrolled  as  constituting  the  record  proper 
in  a  case.  It  may  be  remarked  that  any  decision  or  judg- 
ment of  the  com-t  in  the  case  made  preliminary  to  the  final 
judgment,  becomes  per  se  a  part  of  the  record,  but  all 
other  matters  and  proceedings,  such  as  motions,  exceptions, 
testimony  and  the  like,  do  not  form  any  part  of  the  record 
unless  made  so  by  order  of  court,  by  agreement  of  parties, 
by  demurrer  to  evidence,  by  special  verdict,  or  by  bil]  of 
exceptions.     In  one  of  these  methods,  everything  mate- 


IOWA  CITY,  JUNE,  1849.  281 

Harriman  v.  The  State. 

rial  or  in  any  way  affecting  the  rights  of  parties  in  the 
proceeding  below,  may  be  preserved  and  brought  to  the 
notice  and  review  of  this  court.  And  unless  so  brought 
before  us,  or  if  the  transcript  of  the  record  does  not  ad- 
vert to  the  fact  complained  of,  we  must  take  it  for  granted 
that  the  proceeding  was  according  to  law. 

Finally,  upon  this  point,  even  if  the  objection  under  con- 
sideration amounted  to  the  irregularity  complained  of,  it 
was  waived  by  the  prisoner's  pleading  and  submitting  to 
a  verdict  without  objection. 

4.  It  is  assigned  as  error  that  the  court  apiDointed  an 
elisor  to  impannel  the  jury;  and  it  is  insisted  that,  under 
the  statute,  the  coroner  should  perform  that  duty  in  all 
cases  where  the  sheriff  becomes  incompetent,  under  the 
influence  of  "  partiality,  prejudice,  consanguinity,  or  in- 
terest."    Rev.  Stat.,  195,  §  §  2,  3,  4. 

5.  It  is  also  insisted  that  the  court  erred  in  permitting 
the  sheriff  to  act  after  the  prisoner  filed  his  affidavit  ob- 
jecting to  him. 

6.  That  the  court  erred  in  impanneling  the  second  jury. 

It  appears  by  the  bill  of  exceptions,  and  by  the  affi- 
davit therein  copied,  that  the  proceedings  referred  to  in  the 
last  three  objections  were  had  chiefly  at  the  especial  re- 
quest of  the  prisoner.  In  his  affidavit  stating  the  sheriff 
to  be  prejudiced  against  him,  he  expressly  prays  the  com't 
to  appoint  an  elisor  to  act  in  his  place.  Had  the  affidavit 
objected  to  the  sheriff  alone,  without  desiring  the  appoint- 
ment of  an  elisor,  the  coroner,  had  there  been  one,  should 
no  doubt  have  performed  the  duties ;  but  by  desiring  an 
elisor,  the  prisoner,  by  strong  implication  at  least,  mani- 
fested an  objection  to  the  coroner,  and  therefore,  for  his 
benefit,  the  court  very  properly  appointed  an  elisor.  But 
it  appears  that  the  sheriff  acted  after  the  affidavit  was 
filed,  in  summoning  the  panel  of  jurors  for  the  special 
term  at  which  the  prisoner  was  tried,  and  also  in 
selecting  talesmen  after  the  regular  panel  was  exhausted. 
Had  the  prisoner  or  his  counsel  objected,  this  would  have 
been  palpably  irregular,  but  we  are  advised  by  the  bill 

Vol.  IL  19 


282  SUPREME  COURT  CASES, 

Harriman  v.  The  State. 

of  exceptions  that  it  was  done  "  in  the  presence  and  hear- 
ing of  the  prisoner  without  objection  on  his  part;  that 
after  the  sheritfhad  summoned  several  talesmen,  the  coun- 
sel of  the  prisoner  stated  that  they  were  unwilling  to  have 
the  sheriff  proceed  any  further,  and  requested  the  court  to 
appoint  some  other  person,  and  the  court,  with  the  consent 
of  the  prisoner,  directed  Robert  Rinkade  to  act  as  an 
elisor  during  the  trial.  The  jury  of  twelve  men  who  tried 
the  case  were  not  objected  to  by  either  party  before  they 
were  sworn,  for  any  irregularity  or  informality  in  sum- 
moning any  of  the  jurors. 

The  objection  does  not  appear  to  have  been  raised  till 
after  the  verdict,  when  it  was  urged  in  support  of  the  mo- 
tion to  arrest  the  judgment.  This  we  regard  as  a  sufficient 
answer  to  these  objections.  The  proceedings  were  either 
at  the  request,  or  met  with  the  acquiescence  of  the  accused, 
and  he  should  not  now  be  permitted  to  come  in  and 
take  advantage  of  slight  and  unimportant  irregularities, 
which  took  place  mostly  for  his  benefit,  and  at  his  request. 
We  freely  concede  the  correctness  of  the  principle  in  crim- 
inal cases,  and  especially  when  human  life  is  at  stake, 
that  the  prisoner  is  to  be  considered  as  standing  on  all  his 
essential  rights,  and  as  waiving  nothing  as  to  material 
irregularity  which  may  detract  from  a  fair  and  impartial 
trial;  but  we  can  see  nothing  in  those  before  us,  which 
could  injuriously  affect  the  rights  of  the  accused,  or  in 
any  way  work  injustice  or  hardship  upon  him ;  nothing  of 
which  he  now  has  a  right  to  complain.  The  authorities 
cii"ed  by  counsel  for  the  state  sufficiently  confirm  the  cor- 
rectness of  the  principle  we  have  hitherto  followed,  that 
it  is  too  late  after  verdict  to  object  to  irregularity  in  the 
manner  of  impanneling  the  jury,  when  no  objection  was 
raised  on  the  trial. 

But  independent  of  this  rule,  which  disposes  of  the 
question,  the  objection  raised  to  the  second  jury  could  not 
be  sustained.  The  jiu*y  impanneled  at  the  regular  term  of 
the  court  were  necessarily  discharged  after  the  prisoner's 
application  for  a  continuance  was  granted ;  and  the  ad- 


IOWA  CITY,  JUNE,  1849.  283 

Harriman  v.  The  State. 

jouriiment  of  that  term  of  the  court,  which,  it  appears,  im- 
mediately followed  the  continuance  of  this  cause,  neces- 
sarily dissolved  the  regular  panel  of  jurors,  which  was  only 
summoned  for  that  term.  A  new  venire,  another  jury  be- 
came indisijensable  for  the  special  term,  and  for  the  trial 
of  the  prisoner.  Clearly  there  was  no  other  course  for 
the  court  to  adopt,  and  we  think  it  would  puzzle  even  the 
ingenious  counsel  in  this  case  to  point  out  any  plausible 
alternative. 

7.  It  is  assumed  that  the  prisoner  was  not  present  at  the 
trial  and  when  the  jury  rendered  their  verdict,  and  that 
the  fact  of  his  presence  must  appear  aflfii-matively  of  record. 

The  right  of  a  prisoner  to  be  present  during  the  pro- 
gress of  the  trial,  and  when  the  verdict  is  rendered,  can- 
not be  questioned.  The  right  "  to  be  confronted  with  the 
witnesses  against  him"  is  guaranteed  by  the  constitution  ; 
and  it  is  essential  that  he  should  be  present  when  the  ver- 
dict is  rendered,  in  order  to  exercise  the  right  of  polling 
the  jury.  This  is  generally  regarded  by  com-ts  as  an  im- 
portant incident  to  a  jury  trial.  In  New  York,  the  prac- 
tice is  to  give  either  party  the  privilege  of  having  the  jury 
polled  at  any  time  before  the  verdict  is  recorded.  Fox  v. 
S?mt/i,  3  Cow.,  23;  T/w  People  v.  Perkins,  1  Wend.,  91. 
The  courts  of  Massachusetts  and  South  Carolina  deny  this 
riglit.  Commonwealth  v.  Rohy,  12  Pick.,  496,  512  ;  State 
V.  Allen,  1  McCord,  525.  But  the  practice  of  the  New 
York  courts  in  that  jiarticular,  and  which  also  prevails  in 
England,  has  been  adopted  by  most  of  the  state  courts  in 
this  country,  and  being  more  conformable  to  the  rights  of 
parties,  we  are  of  the  opinion  that  the  rule  should  continue 
to  obtain  in  Iowa.  In  order  to  secure  this  important  right 
to  prisoners,  then,  it  is  necessary  that  they  should  be  pre- 
sent at  the  time  the  verdict  is  pronounced.  But  does  it 
appear  by  the  record  in  the  present  case  that  the  accused 
was  not  in  court  during  the  trial  or  when  the  verdict  was 
returned  ?  We  think  not.  He  appears  to  have  been  re- 
gularly arraigned,  and  the  record  entry  of  the  day  on  which 
his  trial  commenced  declares  that  the  prisoner  was  brought 


284  SUPREME  COUHT  CASES, 

Harriman  v.  The  St-ite. 

into  court ;  and  the  entry  of  the  day  on  which  the  verdict 
was  rendered  refers  to  the  prisoner  at  the  bar ;  and  again  hip 
presence  is  sufficiently  shown  by  the  bill  of  exceptions. 
And  even  if  the  record  after  the  arraignment  remainec 
perfectly  silent  upon  this  point,  we  could  not  by  implica- 
tion conclude  that  the  judge  neglected  his  duty  in  this  par-* 
ticular ;  but  we  should  rather  suppose,  by  legal  intend- 
ment, till  the  contrary  appears,  that  the  court  had  performed 
its  duty  in  all  those  particulars,  and  had  extended  to 
the  accused  his  constitutional  and  legal  rights. 

8.  There  are  three  errors  assigned,  which  may  be  con- 
sidered under  one  question.  Is  it  necessary  that  the  tran- 
script of  the  record  should  set  forth  the  names  of  the  wit- 
nesses upon  whose  evidence  the  indictment  was  found? 
They  unquestionably  should  be  indorsed  upon  every  true 
bill  returned  by  the  grand  jury  to  the  district  court ;  Rev. 
Stat.,  297,  §  3  ;  but  it  by  no  means  follows  that  they  should 
necessarily  become  a  part  of  the  record  in  a  case ;  it  is 
not  usual  to  have  them  so  incorporated,  nor  does  it  come 
within  the  rule  we  have  given  in  this  opinion.  It  is  one 
of  those  facts  which  a  court  will  always  presume  favorable 
to  the  correctness  of  the  j^roceeding.  Again,  if  the  names 
of  the  witnesses  were  not  indorsed  upon  ihe  indictment, 
the  objection  should  have  been  raised  before  the  district 
court,  otherwise  it  will  be  considered  as  waived.  In  effect 
at  least,  this  question  was  so  decided  by  this  court  at 
Burlington  in  Ra;i/  v.  T/ie  State,  1  G.  Greene,  316. 

In  thus  confirming  the  action  of  the  court  below  upon 
these  various  points,  it  may  be  well  to  observe,  that  we 
have  been  in  no  small  degree  influenced  by  the  liberal 
policy  of  our  criminal  code,  in  dispensing  with  many  of 
the  forms  and  technicalities  which  have  prevailed  to  an 
alarming  extent  in  the  administration  of  criminal  juris- 
prudence. We  are  admonished  by  the  many  failures  in 
prosecutions  for  heinous  offences,  that  the  imperative  duty 
devolves  upon  courts  to  disregard  unsubstantial  forms  and 
unmeaning  technicalities,  and  to  look  more  to  the  substance 
and  merits  of  each  case.     This  is  necessary  to  preserve 


IOWA  CITY,  JUNE,  1849.  285 

Harriman  v.  The  State. 

tlie  majesty  of  law,  and  to  promote  principles  of  peace, 
equality  and  justice. 

But  we  do  not  wish  to  be  understood  as  entirely  disre- 
garding legal  forms  and  teclinicalties.  There  are  many, 
very  many,  which  possess  marked  utility,  and  which  exer- 
cise a  wholesome  restraint  and  salutary  influence  in  prac- 
tice. These  become  matter  of  substance,  and  should 
therefore  be  adhered  to,  especially  those  of  an  established 
character,  which  impart  uniformity,  stability,  certainty, 
and  solemnity  to  judicial  proceedings.  Among  the  most 
important  of  these  we  class  the  form  of  an  oath  required 
by  law  to  be  administered  to  the  jury  in  the  trial  of  a 
criminal  cause ;  which  leads  us  to  the  only  remaining 
question  worthy  of  consideration  in  this  case. 

9.  It  is  alleged  that  the  oath  of  the  jury  as  shown  by 
the  record  was  illegal.  The  record  sets  fortli  tliat  the  jury 
were  "  sworn  the  truth  to  speak  upon  the  issue  joined 
between  the  parties."  This  appears  to  have  been  the  form 
of  the  oath  administered  to  the  jury,  as  a  qualification  to 
try  a  prisoner  upon  an  issue  involving  life  or  death.  It 
is  so  deficient  in  substance,  so  barren  of  solemnity,  of 
essential  decLarations  and  restrictions,  which  should  be 
required  as  the  most  imposing  moral  and  legal  restraint 
from  those  wlio  are  intrusted  with  the  life  and  destiny  of 
a  fellow-being,  that  we  can  under  no  rule  of  practice 
afilrm  the  judgment  which  resulted  from  their  verdict. 
Rev.  Stat.,  p.  298,  §  5,  i-equires  that  the  oath  or  affirma- 
tion of  petit  jurors  in  criminal  cases  shall  be  as  follows, 
to  wit:  "You  solemnly  swear  (or  affirm,)  that  without 
respect  to  person  or  favor,  or  fear,  you  will  well  and  truly 
try,  and  true  deliverance  make,  betvv^een  the  '  State  of 
lojva  '  and  the  prisoner  at  the  bar,  whom  you  shall  have 
in  charge,  according  to  the  evidence  given  you  in  com't, 
and  the  laws  of  this  '  6;to^<?,'  so  help  you  God."  This  is 
the  oath,  wliich,  under  the  requirements  of  our  statute, 
should  have  been  administered  to  the  jury.  Had  their 
oath  contained  the  substance  of  this  in  any  other  form,  we 
should,  after  verdict,  have  regarded  it  as  sufficient.     Or 


286  SUPREME  COUHT  CASES, 

Nash  V.  The  State. 

had  the  record  remained  silent  ui^on  this  point,  we  should 
have  presumed  that  they  had  taken  the  legal  oath.  But 
as  it  is,  as  the  record  discloses  so  obvious  an  error,  tlio 
judgment  must  be  reversed,  and  a  trial  de  novo  awarded. 

Judgment  reversed. 

Dissenting  opinion  hy  Kinney,  J.  I  most  respectfully 
dissent  from  so  much  of  this  opinion  as  authorizes  the 
word  "  The  "  to  be  left  out  in  the  style  of  the  process  in 
criminal  prosecutions.  The  constitution  provides  that  the 
«tyle  of  the  process  shall  be  "  The  State  of  Iowa,''''  and  all 
prosecutions  shall  be  conducted  in  the  name  and  by  the 
authority  of  the  same.     Art.  5,  §  6,  Con. 

The  word  "The  "  is  as  much  a  part  of  the  style  of  the 
process  as  either  of  the  other  words  designated.  It  takes 
all  the  words  to  constitute  the  style ;  one  can  be  left  out 
with  as  much  propriety  as  the  other.  I  cannot  for  a 
moment  sanction  a  departure  from  what  appears  to  my 
mind  so  plain  a  constitutional  requirement.  A  strict 
adherence  to  constitutional  provisions  is  the  only  safety 
for  courts  of  justice. 

D»  Rorer  and  J.  C.  Hall,  for  the  prisoner. 

A.  H.  Patterson  and  E.  H,  Thomas,  for  the  state. 


NASH  V.  THE  STATE. 

An  indictment  is  good  which  clearly  states  all  the  facts  necessary  to  «Wl" 

stitute  the  crime  of  murder  under  the  statute. 
An  indictment  need  only  state  such  facts  as  are. required  to  be  proved. 
If  a  criminal  act  has  heen  committed  in  one  county,  and  consummated  in 

another,  the  offender  may  be  indicted  in  either  county. 
Where  a  mortal  blow  was  inflicted  in  Scott,  from  which  death  took  place 
ill  Jliisc-atiue  county,  it  was  held  that,  tlie  latter  county  had  jurisdiction. 


\ 


IOWA  CITY,  JUNE,  1849.  '        287 

Nash  V.  The  State. 

The  statute  wliicli  provides  that,  "  When  a  person  shall  commit  an  offence 
on  board  of  any  vessel  or  float,  he  may  be  indicted  for  the  same  in  any 
county,  through  any  part  of  which  such  vessel  or  float  may  have  passed 
on  that  trip  or  voyage,"  is  not  confined  to  that  part  of  the  trip  or  voyage 
which  had  been  performed  before  the  offence  was  committed,  but  it 
extends  to  the  entire  trip. 

A  prisoner  cannot  complain  of  proceedings  which  were  beneficial  to  him, 
and  in  compliance  with  his  request. 

Where  depositions  are  taken  by  the  procurement  and  for  the  benefit  of 
a  prisoner,  and  are  not  read  to  the  jury  by  his  counsel,  they  may  be 
read  by  counsel  for  the  state,  if  they  were  filed  and  properly  in  the 
custody  of  the  court, 

Ekror  to  Muscatine  District  Court. 

Opinion  hy  Williams,  C.  J.  At  the  October  term  of 
the  district  coui't  of  Muscatine  county,  Henry  Nash,  the 
prisoner,  was  indicted  for  the  murder  of  one  Littleton  J. 
Reddin.  The  record  shows  that  Nash  was,  at  the  time  of 
the  finding  and  filing  of  the  indictment,  in  custody.  He 
at  that  term  appeared,  and  by  his  counsel  moved  for  a 
continuance  of  his  cause.  At  his  instance  the  cause  was 
continued  for  trial  until  Tuesday  the  21st  day  of  Novem- 
ber, to  which  time  the  court  was  adjourned.  The  court  at 
the  same  time,  upon  the  request  of  the  prisoner  accom- 
panied by  a  proper  show^ing,  entered  an  order  granting 
leave  to  take  the  depositions  of  witnesses  to  be  used  on 
the  trial  of  the  cause,  "  if  it  should  be  made  to  appear  to 
the  court  that  personal  attendance  of  the  witnesses  could 
not  be  procured  by  proper  diligence." 

It  was  also  agreed,  by  the  defendant  in  person,  that  the 
regular  panel  of  jurors  of  that  term  might  be  discharged, 
and  that  the  judge  might  issue  an  order  to  the  sheriff  for 
the  summoning  of  a  jury  for  the  trial.  The  prisoner  by 
his  counsel  then  filed  in  the  clerk's  office  his  notice  and 
interrogatories  in  accordance  with  the  statute,  to  take  the 
depositions  of  witnesses.  The  record  also  shows  that 
the  cause  was  not  tried  on  the  21st  day  of  November, 
1848,  that  being  the  day  to  which  the  court  had  been 
adjourned  ;  but  on  the  28th  day  of  that  month  the  court 
commenced  its  session  for  the  trial.     On  that  day  Nash, 


288  SUPREME  COURT  CASES, 


Nash  V.  The  State. 


the  prisoner,  filed  among  the  records  of  the  cause  his 
written  acknowledgment  that  the  trial  had  been  adjom-ned 
from  the  21st  until  the  28th  of  November,  at  his  request, 
and  for  his  own  benefit.  On  the  28th  day  of  November, 
1848,  the  prisoner  Avas  dul}^  arraigned,  and  put  in  his 
plea  of  "  Not  guilty."  The  jury  was  impanneled  and 
qualified,  the  parties  heard,  and  the  prisoner  found  guilty 
of  manslaughter.  After  the  rendering  of  the  verdict,  the 
counsel  of  the  prisoner  made  a  motion  to  arrest  the  judg- 
ment, which  was  overruled  by  the  court,  and  sentence 
pronounced. 

Several  bills  of  exceptions,  during  the  trial,  were  taken 
to  the  ruling  of  the  court,  within  which  all  the  points  of 
law  relied  on  by  the  counsel  for  the  prisoner  are  set 
forth,  and  on  which,  it  is  urged  here,  that  error  is  mani- 
fest in  the  proceedings  of  the  court  below. 

The  following  errors  are  assigned  : 

1st.  The  indictment  does  not  clearly  charge  that  the 
beating  and  wounding  were  feloniously  done ;  nor  that 
the  killing  was  unlawful. 

2d.  The  wounds  are  not  described.  The  time  of  the 
death  is  not  sufficiently  set  forth.     The  conclusion  is  bad. 

3d.  The  indictment  is  not  made  up  of  charges  and 
specifications,  as  is  required  by  statute ;  nor  is  an  in- 
dictable offence  so  clearly  charged  therein,  that  a  judg- 
ment can  be  given  thereon. 

4tli.  The  indictment  charges  that  the  offence  was  com- 
mitted on  board  a  steamboat  in  Scott  county,  which  boat 
afterwards  passed  through  the  county  of  Muscatine.  The 
statute  gives  no  jurisdiction  in  such  state  of  facts  to  Mus- 
catine county. 

5th.  The  depositions  of  witnesses  were  read  by  the  state. 

6th.  Judgment  was  against  the  defendant,  when,  by  the 
law  of  the  land,  there  should  have  been  no  judgment. 

7th.  There  was  no  court  in  session  when  the  pretended 
trial  was  had. 

The  first  assignment  of  error  is,  that  the  charge  of  the 
offence  therein  is  defective  :  "  that  it  does  not  alienee  the 


IOWA  CITY,  JUNE,  1849.  289 

Nash  V.  The  State. 

beating  and  wounding  to  have  been  done  feloniously^  nor 
that  the  killing  was  ww/a?^?/^(f/."  The  first  count  in  the  in- 
dictment charges  that  "  Heniy  Nash  to  wit :  on  the  four- 
teenth daj'  of  September  in  the  year  of  our  Lord  eighteen 
hundred  and  forty  eight,  in  the  county  of  Scott,  in  the 
state  aforesaid,  wilfully,  feloniously,  and  with  malice  afore- 
thought, with  force  and  arms  did  make  an  assault  upon 
one  Littleton  J.  Ileddin,  then  and  there  being  in  the  peace 
of  the  state,  and  him,  the  said  Reddin,  did  beat  bruise  and 
wound  upon  his  head  with  an  iron  bar,  of  which  beating, 
bruising  and  wounding  the  said  Reddin  afterwards,  to 
wit,  on  the  eighteenth  day  of  the  same  month  of  Septem- 
ber, in  the  aforesaid  county  of  Muscatine,  did  die  ;  "  and 
then  concludes  with  the  averment,  "  that  the  said  Henry 
Nash,  in  manner  aforesaid,  did  feloniously,  wilfully,  and 
of  his  malice  aforethought,  commit  the  crime  of  murder 
against  the  peace,  &c.,  and  contrary  to  the  form  of  the 
statute  in  such  case  made  and  provided." 

The  second  count  sets  out  the  time  and  place  when  and 
where  the  beating  and  wounding  occurred,  adding  that  it 
happened  on  the  steamboat  ''  Ohio  Mail,"  "which  after- 
wards passed  through  the  said  county  of  Muscatine ; "  and 
then  charges  that  the  said  Ileddin,  on  the  eighteenth  day 
of  the  said  month  of  September,  of  the  beating  and 
wounding  aforesaid,  at  the  county  of  Muscatine  aforesaid, 
did  die.  This  count  is  concluded,  also,  by  an  averment 
that  the  beating,  wounding  and  killing  was  done  "  felon- 
iously and  with  malice  aforethought,"  whereby  the  said 
Nash  committed  the  crime  of  murder. 

The  third  count  sets  out  the  beating  and  the  wounding 
as  having  been  done  on  the  same  day  as  in  the  former 
counts,  and  that  the  said  Nash,  having  so  beaten,  bruised, 
and  wounded  the  said  Ileddin  "  feloniously,"  and  of  his 
malice  aforethought,  that  he,  the  said  Reddin,  afterwards 
"  died  of  the  wounds  and  injury  inflicted  by  said  beating 
and  wounding,"  and  concludes,  "  against  the  peace,  &c." 

It  is  true  that  in  this  indictment  some  of  the  terms 
used  in  setting  out  the  charge  of  murder  are  not  employed 


290  SUPREME  COURT  CASES, 

Nash  V.  The  State. 

in  accordance  with  the  ohl  forms  which  are  found  in 
the  proceedings  at  common  law,  and  under  the  provisions 
of  some  of  the  statutes  of  the  old  states,  in  like  cases. 
There  is  now  a  ]3revailing  tendency  to  simplify  legal  pro- 
ceedings, by  divesting  them  of  superfluous  verbiage  and 
useless  repetitions,  which  can  only  serve  to  present  the 
crime  so  charged  in  awful  sound  and  form,  without  giving 
to  or  taking  from  it  anything  to  render  it  more  sub- 
stantial or  distinctive.  It  is  certainly  the  duty  of  legis- 
lators and  judicial  tribunals  to  aid  in  that  advance- 
ment and  improvement  in  the  judicial  procedure  of  our 
country,  which  increase  of  knowledge  by  experience  and 
education  demands.  Every  student  must  be  aware  of 
the  great  difference  between  the  modes  and  forms  in  the 
legal  procedure  of  the  courts  of  the  olden  time  •  and 
those  of  modern  date.  It  is  most  certainly  true  that  pro- 
fessors of  law  and  jurists  may  never  see  the  day  when 
they  can  dispense  with  such  great  luminaries  as  Coke, 
Blackstone,  and  their  compeers,  who  in  the  dawn  of  pro- 
per civil  association  arose  over  comparative  chaos,  and 
shedding  the  light  of  mighty  intelligence,  drawn  from  the 
supreme  source  of  truth  and  justice,  upon  the  confused 
and  discordant  multitude  of  mankind,  marked  out  and 
described  the  line  between  right  and  wrong,  and  taught 
the  means  of  their  ascertainment.  Theirs  were  the  master 
minds,  which,  in  view  of  the  wants  of  mankind,  associated 
by  civil  compact,  by  erecting  a  mighty  system  of  jurispru- 
dence on  principle,  rendered  the  establishment  of  reason 
and  right  feasible  among  men.  They,  in  their  day  and 
generation,  acting  with  a  wise  reference  to  the  onward 
moving,  upward  rising,  and  expanding  spirit  of  associated 
civilized  man,  newly  modeled  the  temple  of  justice,  by 
dispensing  with  the  unmeaning  ceremonies  which  jurists 
of  antiquity  had  prescribed  for  the  observance  of  those 
who  would  enter  its  gate  and  take  down  the  ponderous 
curtains  which  darkened  the  aisle  leading  to  her  shrine, 
leaving  all  tliat  was  by  tliem  deemed  necessary  to  f"}»' 
jiort  and  substantially  preserve  the  edifice.     In  our  day, 


IOWA  CITY,  JUNE,  1849.  291 

Nash  r.  The  State. 

the  wants  of  society,  as  we  find  them  in  the  advanced 
and  enlightened  condition  of  the  civilized  world,  and  the 
spirit  which  moves  in  the  life  of  educated  man,  admonish 
those  who  are  called  to  minister  at  the  altar  of  justice  to 
lay  aside  all  mere  forms  and  ceremonies,  and  at  the  same 
time  carefully  to  preserve  what  is  necessary  in  substance 
to  give  vitality  and  effect  to  principle.  Truth  and  justice 
are  living  and  eternal  principles.  To  administer  justice 
and  truth  there  must  be  appropriate  system.  Well  de- 
fined rules  of  action,  based  on  principle,  cognizable  by  the 
mind  of  man,  are  essential  to  enable  him  to  understand 
and  maintain  his  rights  whilst  in  the  conflict  of  life.  In 
the  ascertainment  and  establishment  of  justice  between 
men,  so  far  as  the  mode  or  form  is  concerned  in  presenting 
a  charge  or  accusation,  it  should  be  intelligible,  certain, 
and  definite,  truthfully  and  substantially  presenting 
against  the  accused  an  offence  known  to  and  defined  by 
the  law.  In  doing  this,  whether  the  definition  of  the 
offence  be  by  common  law  or  statute,  it  is  requisite  that  the 
terms  of  description  prescribed  by  the  law  should  be 
carefully  observed  ;  more  or  less  than  this  is  not  to  be 
required  by  the  courts. 

In  the  formation  of  the  criminal  code  of  our  state  one 
of  the  first  things  attempted  was  the  establishment  of  such 
a  system  as  would  be  consistent  with  the  spirit  of  the 
time  in  which  we  assumed  civil  organization.  Such  being 
the  design  of  our  legislature,  a  criminal  code  was  enacted 
by  which  offences  against  the  welfare  of  society  and 
"  the  peace  and  dignity  of  the  state"  have  been  defined, 
and  the  mode  of  judicial  procedure  and  practice  pointed 
out.  It  is  the  positive  duty  of  courts  to  observe  and  main- 
tain the  distinction  which  is  clearly  enjoined  by  constitu- 
tional law,  so  as  carefully  to  avoid  interference  and 
usurpation  of  power  by  either  of  the  several  departments 
of  government.  Indeed,  to  the  judicial  tribunals  is  this 
great  conservative  power  confided.  To  them  alone,  in 
the  last  resort,  must  the  aggrieved  party  look  for  relief. 
It  is  properly  the  province  of  the  legislature  to  alter  the 


292  SUPREME  COURT  CASES, 


Nash  V.  The  State. 


common  law  by  enactments  deemed  conducive  to  the  wel- 
fare of  the  state.  Such  laws  emanating  from  that  body 
are  presumed  to  express  the  will  of  the  sovereign  people, 
and  when  enacted  within  the  prescribed  limits  of  the 
constitution,  are  binding  as  the  law  of  the  land,  and 
must  be  observed.  It  is  the  imperative  and  only  duty  of 
the  courts  to  expound  and  enforce  the  observance  of  the 
laws,  not  to  enact  them.  Then,  tested  by  the  requirements 
of  our  statutes,  defining  the  offence  here  charged,  and 
prescribing  the  practice  of  our  courts  under  the  criminal 
code,  does  this  indictment  contain  such  "  charges  and 
specifications"  as  are  sufficient  to  justify  the  court  in  en- 
tering judgment  and  passing  sentence  in  accordance  with 
the  principles  of  the  law  of  the  land  ?  We  think  it  does. 
It  presents  the  complaint  or  accusation  as  commenced  in 
the  name  of  "  The  State  of  Iowa,"  in  order  that  it  may 
"  be  carried  on  in  the  name  and  by  the  authority  of  the 
same."  The  venue  is  laid  in  the  county  of  Muscatine,  as 
the  place  of  jurisdictional  power,  where  the  bill  purports 
to  have  been  found  by  the  grand  jury.  The  day  on  which 
the  wound  was  inflicted  by  the  accused  upon  the  person 
of  the  deceased  Reddin ;  the  day  on  which  he  died ;  the 
county  within  which  he  died ;  the  felonious  intent  and 
malice  aforethought  with  which  the  blow  was  inflicted ; 
the  weapon  used  and  by  which  the  killing  was  perpe- 
trated ;  the  jjart  of  the  body  upon  which  the  wound  was 
made ;  and  the  averment  that  the  death  was  caused  by 
the  wound  thus  inflicted,  with  the  allegation  that  the  act 
was  wilful  and -against  the  statute  in  such  case  made  and 
provided,  are  all  charged  specifically  in  each  count,  ex- 
cept that  the  last  count  lays  the  offence  in  general  terms 
as  having  transpired  in  Muscatine  county.  Each  count 
is  concluded  with  the  charge  that,  by  the  specific  means 
and  acts  therein  set  forth  and  described,  the  accused  had 
then  and  there  committed  the  crime  of  murder.  Such 
being  the  substantial  ingredients,  in  fact,  composing  the 
indictment,  how  do  they  stand  the  test  of  legislative  re- 
quirement ? 


IOWA  CITY,  JUNE,  1849.  293 

Nash  V.  The  State. 

The  act  defining  tliis  crime  declares  that  "  murder 
is  the  unlawful  killing  of  a  human  being,  in  the 
l>eace  of  the  United  States,  (State  of  Iowa,)  with  malice 
aforethought,  either  express  or  implied."  Rev.  Stat., 
165,  §  4. 

The  second  section  of  the  same  act  declares,  that  "  the 
manner  of  the  killing  is  not  material,  further  than  it  may 
show  the  disposition  of  mind,  or  the  intent  with  which 
the  act  was  committed." 

The  fourth  section  enacts  that,  "  In  order  to  maKe  the 
killing  murder,  it  is  requisite  that  the  person  injured  die 
within  a  year  and  a  day  after  the  stroke  received,  or  the 
cause  of  death  administered." 

The  act  entitled,  "  An  act  regulating  criminal  proceed- 
ings," Rev.  Stat.,  153,  §  46,  provides,  that  "the  body  of 
the  indictment  shall  be  considered  as  made  up  of  charges 
and  specifications,  and  no  indictment  shall  be  quashed,  if 
an  indictable  offence  is  clearly  charged  therein ;  nor  shall 
any  motion  be  entertained,  with  a  view  to  arrest,  reverse, 
or  set  aside  any  judgment,  on  accottnt  of  a  defect  in  the 
indictment,  if  the  charge  upon  which  the  offence  was 
tried  be  so  explicitly  set  forth  that  judgment  can  be 
rendered  thereon." 

Section  forty-eight  of  the  same  act  provides,  that 
"  nothing  need  be  stated  in  the  body  of  an  indictment 
which  is  not  required  to  be  proved  upon  the  trial  in  sup- 
port of  the  charge." 

This  indictment  declares  that  the  deceased  was  killed 
by  the  accused  Nash  "  feloniously,  and  with  malice  afore- 
thought," and  substantially  and  distinctly  avers  that  the 
act  was  done  in  violation  of  or  "  against  the  statute  in 
such  case  made  and  provided."  Although  the  precise 
term  "  unlawfully  "  is  not  used,  still,  as  it  is  charged  to 
have  been  done  "  against  the  statute,"  &c.,  it  must  be 
taken  as  done  unlawfully,  and  the  use  of  the  precise  word 
is  not  indispensable  to  aid  the  language  used  in  the  indict- 
ment to  convey  the  idea  required  by  the  statute  as  a 
charge  to  make  up  the  crime.     The  statute  is  the  law. 


294  SUPREME  COURT  CASES, 

Nash  V.  The  State. 

If  the  act  complained  of  was  done  in  violation  of  it,  it 
was  done  unlawfully. 

The  second  assignment  of  error  is  answered  by  the 
forty-sixth  section  of  the  act  regulating  criminal  proceed- 
ings cited  above,  which  provides  that  "no  judgment  shall 
be  arrested,  reversed,  or  set  aside  on  account  of  any  defect 
in  the  indictment,  if  the  charge  upon  which  the  offender 
was  tried  be  so  explicitly  set  forth  that  judgment  can  be 
rendered  thereon."  There  can  be  no  mistake  as  to  the 
offence  here  charged.  All  the  facts  necessary  to  constitute 
the  crime  of  murder  under  the  statute,  so  that  judgment 
in  accordance  with  the  law  could  be  rendered,  r.i  e  clearly 
stated. 

The  statute  only  requires  such  facts  to  be  stated  in  the 
indictment  as  are  required  to  be  proved  on  the  trial. 
This  requisition,  as  we  have  shown  by  a  statement  of  the 
contents  of  the  indictment,  has  been  fulfilled  and  substan- 
tially observed. 

It  is  also  contended  and  urged,  for  ground  of  reversal 
of  the  judgment  of  the  court  below,  that  "  the  time  of  the 
death  of  Reddinis  not  sufficiently  set  forth."  The  indict- 
ment states  that  the  wound  was  inflicted  on  the  14th  day 
of  September,  a.d.  1848,  and  that  Reddin  died,  in  conse- 
quence thereof,  on  the  18tli  day  of  the  same  month,  being 
four  days  after  he  received  the  wound.  This,  for  all  legal 
purposes,  is  sufficiently  certain  and  conclusive  as  to  the 
time  of  his  death,  being  within  the  limitation  prescribed 
by  the  statute,  in  which  the  death  must  occur  to  make 
the  killing  murder. 

An  objection  is  also  made  to  the  validity  of  the  indict- 
ment, because  the  wound  is  not  particularly  described. 
We  know  that  precedents  are  numerous  in  which  particu- 
lar description  of  the  wound,  as  to  length,  depth  and 
breadth,  is  set  forth,  and  that  they  have  been  followed 
even  till  the  present  day  by  some  who  are  learned  in  the 
legal  profession.  Such  particularity  cannot  vitiate  an 
indictment,  and  may  serve  to  enlarge  and  render  it  quite 
formidable  and   imposing;  but  as  the  law  is  now,  under 


IOWA  CITY,  JUNE,  1849.  295 

Nash  V.  The  State. 

the  provisions  of  our  statute,  this  is  not  requisite.  So  far 
as  the  wound  is  concerned,  it  is  sufficient  to  aver  that  it 
was  inflicted  by  the  accused  on  the  person  of  the  deceased, 
tliat  his  death  was  caused  by  it,  and  that  the  act  was  done 
within  the  jurisdiction  of  the  court. 

Enough  has  been  presented  to  show  that  the  validity  of 
the  indictment  is  not  successfully  assailed  by  the  1st,  2d, 
and  3d  assignments  of  error,  and  that  with  reference  to 
them  the  judgment  of  the  court  is  in  accordance  with 
the  law. 

It  is  contended  that  the  district  court  of  the  county  of 
Muscatine  had  not  legal  jurisdiction  of  the  offence,  and 
proceedings  thereon  ;  that  the  act  was  perpjtrated  in  the 
county  of  Scott,  on  board  of  a  steamboat,  and  that  the 
boat  afterwards  passed  through  the  county  of  Muscatine. 
The  blow  was  given,  and  the  wound,  of  which  the  deceased 
died,  was  inflicted  in  the  county  of  Scott.  From  thence 
the  boat,  on  which  the  parties  in  the  transaction  were, 
passed  down  the  river,  and  stopping  at  the  town  of  Bloom- 
ington,  in  the  county  of  Muscatine,  the  wounded  man, 
Reddin,  was  taken  ashore,  and  Nash,  the  prisoner,  was 
committed  to  prison,  there  to  await  his  trial.  He  was 
there  tried  and  convicted. 

Here  again,  the  legislature  of  the  state,  foreseeing  the 
possibility  of  such  occurrence,  and  the  necessity  of  pro- 
viding for  it,  by  convenient  and  positive  enactment,  have 
prevented  the  success  of  such  objection.  Rev.  Stat.,  153, 
§  42,  provides,  that  "  where  a  criminal  act  has  been  com- 
mitted in  one  county,  and  consummated  in  another,  (as 
where  the  mortal  blow  was  given  in  one  county,  and  the 
death  took  place  in  another,)  the  offender  may  be  indicted 
in  either  county."  The  application  of  this  act  to  the  case 
at  bar  is  too  obvious  to  allow  of  any  discussion.  "  The 
mortal  blow  was  given  "  in  Scott  county,  "  and  the  death 
took  place  in  "  the  adjoining  county  of  Muscatine.  The 
statute,  therefore,  conferred  jurisdiction  of  the  case  on 
Muscatine  county. 

But  it  is  further  contended  that  the  offence  was  com- 


296  SUPREME  COURT  CASES, 

Nash  V.  The  State. 

mitted  on  a  steamboat,  and  that  the  boat  afterwards  passed 
through  the  county  of  Muscatine,  and  in  such  case  the 
statute  confers  no  jurisdiction.  This  objection  is  put  upon 
the  peculiar  hinguage  of  the  statute  relative  to  the  com- 
mission of  offences  on  steamboats  or  other  vessels,  passing 
upon  a  voyage  by,  or  through  the  state.  Rev.  Stat.,  152^ 
§  39,  enacts  that,  "  Where  a  person  shall  commit  an 
offence  within  this  territory  (state)  on  board  of  any 
vessel  or  float,  he  may  be  indicted  for  the  same  in  any 
county,  through  a?i^  part  of  which  such  vessel  or  float 
may  have  passed  on  that  trip  or  voyage."  The  point 
made  here  by  the  counsel  for  the  prisoner  is  that  the 
indictment  was  found,  and  trial  had  in  a  county  through 
whicli  the  boat  passed  after  the  mortal  wound  was  given, 
or  the  offence  committed ;  and,  therefore,  the  act  of  the 
legislature  applying  to  counties,  or  j^art  thereof,  through 
which  the  vessel  had  j)reviously  passed,  conferred  no  juris- 
diction on  that  county. 

What  is  the  obvious  intent  of  this  act?  Clearly  to  pre- 
vent the  escape,  with  impunity,  of  offenders  against  the 
law,  by  securing  their  arrest,  in  case  of  the  commission 
of  crime  on  vessels  afloat  within  the  jurisdiction  of  the 
state.  The  rapidity  with  which  steamboats  move,  and  the 
secrecy  of  night  travel  on  them,  as  well  as  other  craft 
used  on  the  streams,  required  that  extraordinary  means 
should  be  resorted  to,  in  order  to  prevent,  detect  and 
punish  where  more  than  common  opportunity  was  pre- 
sented for  the  commission  of  crime,  and  escape  from  its 
punishment.  To  confine  the  operation  of  this  section  of 
the  law  to  counties,  through  which  such  boat  had  already 
passed,  would  in  many,  if  not  most  instances  of  crime  thus 
committed,  thwart  the  evident  design  of  the  enactment,  by 
leaving  the  offending  crew  of  a  vessel  a  clear  and  open 
channel  to  run  before  the  law.  The  officer  of  the  law 
would  be  unable  to  exert  his  power  until  "  the  boat  had 
left  him."  It  certainly  cannot  be  supposed  that  a  special 
provision  of  this  kind  would  be  enacted  for  any  other 
pm'pose  than  to  extend  the  jurisdiction  of  the  law,  so  as 


IOWA  CITY,  JUNE,  1849.  297 


Nash  V.  The  State. 


to  secure  the  end  of  justice,  by  rendering  such  transient 
offenders  amenable  to  the  sure  hand  of  the  haw. 

But  we  think  the  language  of  the  law,  when  fairly  con- 
strued, settles  this  question.  It  expressly  refers  to  "  that 
trip  or  voyage,"  meaning  any  county  through  which  the 
vessel  may  have  passed  whilst  performing  her  "  trip  or 
voyage,"  The  vessel  on  which  the  offence  was  committed, 
as  the  record  shows,  did  pass  on  her  *'  voyage  "  from  Scott 
county,  down  the  river  Mississippi,  to  the  county  of  Mus- 
catine, where  the  offender,  Nash,  was  arrested,  tried  and 
convicted.  The  whole  proceeding  was  within  the  juris- 
diction of  the  state  of  Iowa,  and  the  boat  having  passed 
through  a  part  of  the  county  of  Muscatine,  within  which 
the  arrest  was  made,  we  think  jm*isdiction  of  the  case  was 
properly  and  legally  exercised  by  the  district  court  of  that 
county,  as  far  as  this  point  is  concerned. 

The  objection  that  the  district  com*t  of  Muscatine 
county  was  not  legally  in  session  when  this  cause  was  ■ 
tried,  and  judgment  given,  is  answered  by  the  record.  It 
appears  that  the  indictment  was  regularly  found  by  the 
grand  jury  at  a  regular  and  legal  term  of  the  court.  It 
fiu'ther  appears,  that  the  cause  was  twice  continued,  and 
the  com*t  as  often  adjourned,  at  the  pcuHiciilar  request  of 
the  prisoner,  and  for  his  benefit^  by  his  agreement  on  file. 
It  certainly  is  unnecessary  to  resort  to  argument  to  show 
that  the  court  below  was  not  in  error  here.  The  humane 
indulgence  of  the  com-t  in  granting  further  time  to  the 
prisoner,  who  stood  for  trial  in  a  capital  case,  when  it 
was  prayed  for  by  the  accused  himself  to  enable  him  to 
procure  the  testimony  of  his  witnesses  in  defence  of 
his  life,  cannot  be  successfully  pleaded  as  error,  so  as 
to  affect  the  judgment  in  the  case,  by  him.  He  cannot 
complain  of  error  in  a  proceeding  which  was  clearly  bene- 
ficial to  him,  and  which  was  had  in  answer  to  his  own 
request. 

It  only  remains  for  us  to  dispose  of  that  assignment  of 
error  relative  to  the  reading  of  the  deposition  on  part  of 
the  prosecution.     The  dedimus  to  take  the  depositions  was 
Vol.  IL  20 


298  SUPREME  COURT  CASES, 

Nash  V.  The  State. 

prayed  for,  granted  and  taken  at  the  instance  and  on  be- 
half of  the  j)risoner  and  plaintiff  in  error  here.  And  the 
depositions  having  been  returned  and  opened,  by  leave  of 
the  court,  after  being  properly  tiled  as  a  part  of  the  case, 
the  court  allowed  the  prosecuting  attorney  to  read  them  on 
part  of  the  prosecution.  To  this  proceeding  the  counsel 
for  the  prisoner  neither  objected  nor  consented.  This 
action  of  the  court  in  the  case  is  complained  of  here  as 
illegal ;  and  for  it  a  reversal  of  the  judgment  is  urged. 
For  the  protection  of  the  rights  of  the  accused,  the  provi- 
sion and  power  of  the  constitution  is  invoked,  and  it  is 
claimed  in  his  behalf,  that  he  had  a  right  to  "  be  con- 
fronted by  his  accusers  and  the  witnesses  of  the  state."  It 
is  most  clearly  the  duty  of  the  court  to  guard  carefully  the 
rights  of  a  citizen  when  upon  trial  for  high  crime.  It  is 
bound  to  see  that  he  has  a  full,  fair,  and  impartial  trial, 
under  the  constitution  and  the  laws.  Has  he  been,  in  this 
case,  denied  the  benefit  of  this  right  ?  The  testimony  was 
of  his  own  jDrocurement.  The  witnesses  were  selected  by 
himself,  and  he  propounded  the  questions  which  were 
answered  by  them.  At  his  instance,  the  depositions  were 
returned  and  filed  in  the  court,  as  part  of  the  case  for 
hearing,  and  in  order  to  sustain  his  defence  on  the  issue 
joined.  The  evidence,  if  relevant  and  material,  was  in  the 
possession  of  the  court,  by  his  own  act.  It  had  not,  in 
an}^  way,  been  subject  to  the  control  of  the  prosecution, 
until  after  it  was  filed  in  the  ease,  as  the  testimony  of  the 
prisoner,  for  his  own  benefit ;  when  filed,  it  was  in  the 
custody  of  the  court,  as  evidence  in  the  case.  We  cannot 
see,  under  the  circumstances,  how  moral  wi'ong,  or  in- 
justice in  fact,  could  be  done  to  the  prisoner.  Whether 
the  depositions  were  read  by  the  counsel  for  the  state,  or  for 
tlie  prisoner,  could  not  materially  afi'ect  the  merits  of  the 
case.  The  bill  of  exceptions  does  not  show  that  the  pris- 
oner, or  counsel,  offered  any  objection  to  the  reading  of 
til  em,  by  the  attorney  for  the  state,  at  the  time ;  but  merely 
took  an  exception  to  the  ruling  of  the  court  in  suff'ering 
them  to  be  read.     Nor  does  it  appear  that  any  intention 


IOWA  CITY,  JUNE,  1849.  299 


Nash  V.  The  State. 


was  shown,  or  attempt  made  by  the  prisoner  or  his  counsel 
to  withdraw  the  depositions  from  the  files  of  the  court  or 
the  trial  of  the  cause.  It  is  the  mere  act  of  reading  them, 
by  the  counsel  for  the  state,  which  is  excepted  to.  Was 
the  court  legally  justified  in  thus  permitting  the  evidence 
of  the  prisoner  to  go  to  the  jury?  We  think  this  ruling 
of  the  court  is  warranted  by  the  act  of  the  legislature 
"regulating  criminal  proceedings."  Rev.  Stat.,  160, 
§  109,  where  it  is  enacted,  that  "  the  power  and  practice  of 
the  courts  in  criminal  matters  shall  (except  so  far  as 
herein  modified)  remain  the  same  as  they  have  heretofore 
been  ;  and  shall,  as  far  as  practicable,  be  made  to  coincide 
with  the  corresponding  practice  in  civil  cases."  By  turn- 
ing to  "  An  act  regulating  the  naode  of  taking  depositions, 
and  to  provide  for  the  perpetuation  of  testimony  "  in  civil 
proceedings.  Rev.  Stat.,  228,  §  9,  we  find  that  it  is  provided, 
that  "  all  depositions  taken  in  pursuance  of  this  act,  w/ien 
returned  into  court,  maj'"  be  read  by  either  party,  on  the 
trial  of  the  cause  to  which  they  relate."  Here  the  legis- 
lature again,  we  think,  has  given  direction  to  the  power 
and  action  of  the  court  in  relation  to  the  practice  in  this  very 
matter.  We  view  the  course  adopted,  and  acted  upon  by 
the  court,  as  in  accordance  with  the  practice  prescribed 
by  these  acts  taken  in  connection  and  fairly  construed. 
This  view  of  the  questions  contemplates  this  construction, 
and  the  legislative  enactments  on  which  it  is  put,  as 
substantially  free  from  constitutional  objection,  and 
working  no  WTong  to  the  prisoner,  by  taking  from  him 
his  legal  rights  ;  whilst  the  great  designs  of  judicial  trial, 
the  ascertainment  of  truth,  and  advancement  of  justice, 
are  attained  by  the  court.  The  court  below,  by  its  proceed- 
ings in  the  case,  as  it  appears  of  record,  as  well  as  the 
counsel  for  the  prosecution,  seems  to  have  extended  to  the 
defendant  every  opportunity  of  making  manifest  his  in- 
nocence, consistent  with  "  the  law  of  the  land,"  adminis- 
tered with  a  careful  regard  for  the  public  security  and 
weal,  as  well  as  the  rights  of  the  accused.  We  see  nothing 
in  the   errors  assigned,  which,  viewed    in    the    light   of 


300  SUPREME  COURT  CASES, 

Fitch  V.  Casey. 

reason,  justice,  or  laAv,  will  warrant  us  in  interfering  with 
the  judgment  of  the  district  court. 

Judgment  afi&i-med. 

S.  Wkic/ier,  for  the  prisoner. 

W.  G,  Woodward,  for  the  state. 


FITCH  a  al  V.  CASEY. 

A  tax  deed  is  not  good  which  conveys  more  land  than  was  assessed  or  ad. 
vertised  for  the  taxes. 

If  A  covenants  to  make  B  a  good  and  sufficient  deed,  B  is  not  obliged  to  take 
the  deed,  unless  A  has  a  good  and  indefeasible  estate  in  the  land  cove- 
nanted to  be  conveyed. 

Dependent  and  independent  covenants  explained. 

Plaintilf  agreed  to  do  work  for  defendant  and  take  land  in  payment.  Defend- 
ant contracted  to  make  a  good  title  to  the  land,  on  the  performance  of 
the  work,  but  the  title  was  not  in  him.  Held  that  plaintiff  was  at  liberty 
to  rescind  the  contract  and  was  not  obliged  to  do  the  work,  and  that  if  he 
did  the  work,  he  was  entitled  to  payment  as  on  a  cash  contract  to  do  work. 

Erkor  to  Muscatine  District  Court. 

Opi7iion  hy  Kdstney,  J.  Peter  Casey  filed  a  petition 
for  a  mechanic's  lien,  stating  that  on  the  13  th  day  of 
August,  1847,  George  W.  Fitch  being  then  alive  and 
owner  of  the  middle  twenty  feet  of  lot  6  in  block  12  in  the 
town  of  Bloomington,  Iowa,  entered  into  a  contract  with 
the  petitioner  and  employed  him  to  furnish  labor  for 
erecting  a  storehouse  on  said  lot,  which  petitioner  pro- 
ceeded to  do,  and  that  before  the  completion  of  said  con- 
tract, said  Fitch  deceased.  That  Harriet  Fitch,  the  widow 
and  administratrix  of  said  George  "W.  Fitch,  contracted 
with  and  employed  the  petitioner  to  perform  other  and 
further  work  on  said  building  towards  the  completion  of  the 
Bame.     That  such  labor  was  fm-nished  to  the  amount  (;f 


IOWA  CITY,  JUXE,   1849.  301 

Fitch  V.  Casey. 

$162.37,  as  per  bill  of  particulars  filed  and  made  part 
of  the  petition ;  payment  of  whicli  became  due  when 
the  same  was  performed,  but  has  not  been  made. 
Petitioner  further  represents,  that  for  that  part  of 
the  labor  contracted  for  by  said  George  W.  Fitch,  pay- 
ment was  to  be  taken  in  the  east  half  of  lot  number 
8,  in  block  103,  at  $50;  or  if  said  Casey  should  pre- 
fer to  purchase  twenty-four  feet  on  the  westerly  side  of 
lot  4,  in  block  74,  at  $150,  he  was  to  have  and  receive 
the  same. 

Petitioner  represents  that  he  has  preferred  to  purchase 
the  said  twenty-four  feet  in  said  lot  4,  and  has  signified 
said  preference  to  the  said  Harriet  Fitch,  but  charges  that 
said  George  W.  Fitch  had  not,  nor  have  his  representa- 
tives, any  good  title  in  law  to  the  said  twenty-four  feet  by 
which  they  or  any  of  them  can  convey  the  same  to  peti- 
tioner. 

The  petitioner  prays  for  the  benefit  of  an  "  act  rela- 
tive to  mechanic's  liens  and  for  other  purposes,"  and 
for  a  lien  upon  the  premises  aforesaid.  To  this  petition 
the  defendant  filed  a  plea,  stating  in  substance  that 
the  contract  was  entered  into  in  the  lifetime  of  said 
George  W.  Fitch,  whereby  it  was  discretionary  with 
the  said  Casey  to  receive  in  payment  of  said  work, 
either  the  east  half  of  said  lot  number  8,  in  block 
number  103,  at  $50,  or  to  purchase  twenty-four  feet 
on  the  westerly  side  of  lot  4,  in  block  74,  at  $150. 
And  the  said  defendants  aver  that  after  the  Avork  to 
be  performed  by  said  plaintiff  under  his  contract  with 
said  Fitch  was  completed,  the  said  plaintifi"  did  choose 
and  prefer  to  purchase  twenty-four  feet  on  the  west- 
erly side  of  lot  4,  at  $150,  which  said  parcel  of  lot 
the  said  George  W.  Fitch  died  seized,  and  to  which 
he  has  a  good  and  sufficient  title.  The  defendants 
further  aver,  that  it  was  in  consideration  that  the  said 
plaintiff  would  purchase  said  twenty-four  feet,  at 
the  sum  of  $150,  that  she,  as  administratix,  employed 
him  to  do  the  other  and  further  work  upon  said  build- 


302  SUPREME  COURT  CASES, 

Filch  V.  Casey. 

ing;  and  that  after  said  work  was  performed,  she  ac- 
counted with  the  jjlaintifi:  and  paid  him  $18.62  which 
was  to  be  in  full  of  all  demands,  when  she  should  make 
to  him  a  good  and  sufficient  warrantee  deed  of  convey- 
ance to  said  part  of  lot  4.  The  defendants  further  say, 
that  they  are  ready  and  willing  at  all  times  to  convey  to 
plaintiff  said  part  of  lot,  and  to  perform  specifically  said 
contract,  and  that  they  are  ready,  upon  the  authority  of  the 
court  in  chancery  sitting,  to  convey  said  part  of  lot  in  like 
manner  as  the  said  George  W.  Fitch  could  or  ought  to 
have  done  were  he  living.  To  this  plea  the  plaintiff  re- 
plied, that  neither  the  said  defendants,  nor  the  sr.id 
George  W.  Fitch  in  his  lifetime,  had  a  good  title  to  said 
l^art  oi  lot  4  in  the  plea  mentioned,  and  this  he  prays  may 
be  inquired  of  by  the  county. 

The  cause  was  submitted  to  the  court  upon  this  issue  of 
title,  and  testimony  having  been  offered,  it  was  adjudged 
by  the  court  that  the  defendants  had  not  sustained  their 
plea,  and  the  court  finding  for  the  plaintiff,  rendered 
judgment  in  his  favor  for  $150  with  a  lien  for  the  pay- 
ment on  the  middle  twenty  feet  o.'  lot  6,  with  leave  to  sue 
out  a  special  execution. 

It  appears  from  the  bill  of  exceptions,  that  on  the  trial 
of  this  cause  the  court  ruled  that  it  was  material  to 
determine  whether  George  W.  Fitch,  in  his  lifetime, 
was  seized  of  and  had  title  to  the  westerly  two-fifths  of 
lot  4,  in  block  74,  in  the  town  of  Bloomington;  and  the 
said  defendants  produced  a  deed  made  in  due  form  by  the 
collector  of  taxes  of  Muscatine  county,  Iowa,  to  the  said 
George  W.  Fitch  deceased,  for  the  next  two-fifths  of  said 
lot,  the  said  deed  having  been  made  in  pursuance  of  a  judg- 
ment of  said  court  at  the  spring  term  thereof,  1847,  against 
the  said  two-fifths  of  said  lot  for  non-pajmient  of  the  tax 
due  thereon  for  the  year  1844.  It  appeared  that  but  the 
west  one-fifth  of  said  lot  had  been  assessed  for  the  year 
1844;  that  on  the  delinquent  list  the  collector  returned  the 
west  two-fifths  as  delinquent ;  that  the  west  one-third  of 
said  lot  was  advertised  as  required  by  law;  and  the  ques- 


IOWA  CITY,  JUNE,  1849.  303 

Fitch  V.  Case}'. 

tion  was  whetlier  these  variances  between  the  assessment, 
advertisement  and  judgment,  would  vitiate  the  title  of  the 
said  George  W.  Fitch  to  the  west  one-fifth  of  said  lot, 
which  was  all  that  was  claimed  by  said  Fitch  under  said 
deed.  To  prove  title  to  the  one-fifth  of  said  lot  next  to 
the  west  one-fifth,  the  defendants  offered  a  deed  of  gen- 
eral warrantee  dated  February  1,  1841,  from  Charles  A. 
Worfield  to  George  W.  Fitch,  acknowledged  and  recorded, 
conveying  a  part  of  said  lot  by  the  following  description, 
to  wit:  "One  fifth  part  of  lot  4,  in  block  74,  being  twelve 
feet  of  said  lot,  the  said  lot  being  divided  into  five  equal 
strips,  and  the  numbering  beginning  on  the  east,  the 
piece  hereby  intended  to  be  conveyed  is  the  fom'th  from 
the  east  side  of  said  lot." 

And  the  court  decided  that  the  said  variances  raised 
such  a  doubt  of  title  in  the  said  Fitch,  that  his  contract 
with  the  said  plaintiff,  as  set  forth  in  the  defendants'  plea, 
could  not  be  discharged  by  a  good  and  suflicient  deed  of 
general  warrantee  to  twenty-four  feet  on  the  westerly  side 
of  lot  4  in  block  24 ;  the  size  of  said  lot  being  admitted  to 
be  sixty  feet  front  by  one  hundred  and  forty  feet  deep.  To 
which  ruling  and  opinion  of  the  court  the  defendants 
excepted. 

It  will  be  recollected  that,  according  to  the  pleadings, 
the  plaintiff  and  defendants  agree  in  relation  to  this  main 
feature  in  the  contract,  that  it  was  optional  with  Casey  to 
receive  in  payment  for  his  work  either  the  east  half  of  lot 
8,  or  to  purchase  twenty-four  feet  on  the  westerly  side 
of  lot  4.  Casey  states  in  his  petition  that  he  elected  to 
take  the  latter,  but  charges  that  the  defendants  cannot 
make  a  conveyance  to  said  part  of  lot  4.  The  defend- 
ants admit  that  Casey  elected  to  take  part  of  lot  4  in- 
stead of  the  west  half  of  lot  8,  but  aver  a  settlement 
and  payment  of  $18.62,  which  was  in  full  of  all  demands 
when  defendants  should  make  the  plaintiff  a  good  and 
sufficient  warrantee  deed  of  conveyance  to  said  part  of 
lot  4. 

The  defendants,  therefore,  in  their  plea  admit  the  con- 


304  SUPREME  COURT  CASES, 

Fitch  V.  Casey. 

tract,  admit  tlie  right  of  plaintiff  to  choose  which  piece  of 
ground  he  would  take  in  paj^ment,  admit  the  selection  of 
part  of  lot  4,  and  admit  that  they  were  to  make  to 
plaintiff  a  good  and  sufficient  warrantee  deed  of  convey- 
ance to  said  part  of  lot,  and  aver  that  they  have  a  good 
title  to  said  lot,  and  that'  they  are  willing  to  make  the 
conversance. 

The  case  being  thus  narrowed  down  by  the  state  of  the 
pleadings,  it  is  unnecessary  to  discuss  those  questions 
raised  in  the  argument  as  to  the  rights  and  duties  of 
parties  when  contracts  are  in  the  alternative. 

The  pleadings  and  evidence  raise  but  two  questions. 
First,  Does  the  testimony  show  that  the  deceased  in  his 
lifetime  was  seized  of  a  good,  title  to  said  part  of  lot  4,  and 
coukl  the  defendants  as  his  representatives  be  empowered 
to  convey  the  fee  in  said  lot  to  the  plaintiff? 

Second,  Would  it  have  been  a  sufficient  discharge 
of  the  contract  for  the  defendants  with  a  defective 
title  to  have  made  a  deed  good  in  form ;  and  would 
i\\Q  plaintiff  have  been  obliged  to  accept  such  deed 
when,  by  the  admission  of  the  defendants,  they  were 
to  make  a  good  and  sufficient  warrantee  deed  of  con- 
veyance ? 

First,  As  to  the  nature  of  the  defendants'  title  and.  their 
power  to  make  a  deed.  The  entire  lot  is  sixty  feet  front, 
and  one  hundred  and  forty  feet  deep.  The  plaintiff  was 
to  have  twenty-four  feet  on  the  westerly  side.  The  de- 
fendants had  a  tax  collector's  deed  for  the  west  two-fifths 
of  said  lot,  but  it  appeared  that  but  the  west  one-fifth  was 
assessed,  although  the  collector  had  returned  the  west  two- 
fifths  as  delinquent.  The  west  one-third  was  advertised 
as  required  by  law,  and  the  west  two-llfths  sold.  Under 
this  sale  and  by  virtue  of  the  collector's  deed,  the  defend- 
ants claim  a  valid  and  subsisting  title  to  the  west  one- 
fifth  of  said  lot,  the  title  to  the  other  one-fifth  next  there- 
to being  indisputable.  These  variances  we  think  sufficient 
to  vitiate  the  entire  sale  and  defeat  the  collector's  deed. 
In  the  assessment  of  property  for  taxes,  and  from  thence 


IOWA  CITY,  JUNE,  1849.  305 

Fitch  V.  Casey. 

througli  each  progressive  step  up  to  the  sale  and  deed,  the 
officers  should  be  held  to  a  strict  and  technical  compliance 
with  the  requirements  of  the  statute. 

The  doctrine  of  presumptions  cannot  apply  in  relief  of 
their  mistakes,  or  to  avoid  the  effect  of  their  omissions. 
All  of  the  proceedings  must  be  in  conformity  with  the 
statute,  and  they  may  be  introduced  in  evidence  to  show 
a  want  of  such  conformity  and  to  defeat  a  collector's  deed, 
which  is  but  prima  facie  evidence  that  the  statute  has 
been  complied  with.  The  deed  as  evidence  of  title  is  sub- 
ject to  all  the  legal  objections  which  may  exist,  to  every 
material  step  in  the  proceedings  antecedent  to  its  execution 
and  delivery.  If  no  such  objections  exist,  it  conveys  a 
good  title ;  if  they  do  exist,  no  title  passes.  In  this  case, 
these  objections  are  of  a  serious  character,  and  the  evi- 
dence shows  a  manifest  violation  of  some  of  the  most  im- 
portant provisions  of  the  statute.  Two-fifths  of  the  lot 
were  sold  and  a  deed  made,  when  but  one-fifth  was  assessed 
for  taxes.  The  officer  sold  one -fifth,  on  which  no  tax 
was  levied,  and  therefore  on  it  no  tax  incumbrance  existed. 
The  west  one-third  only  was  advertised,  and  yet  the 
west  two-fifths  were  sold.  A  portion  of  the  lot  was  sold 
without  the  previous  notice  requu-ed  by  the  statute  having 
been  given.  These  discrepancies  and  omissions  are  fatal 
to  the  validity  of  the  sale,  and  hence  no  title  passed  to 
the  purchaser.  The  representative  consequently  could 
not  make  a  good  and  sufficient  deed  of  conveyance  to  one- 
fifth  of  the  lot  in  controversy,  and  as  the  defendants  had 
no  title,  it  would  be  impossible  in  a  suit  for  specific  per- 
formance to  compel  a  conveyance. 

We  come  now  to  the  second  proposition.  Although  the 
defendants  had  not  a  good  title  to  all  of  the  part  of  said 
lot,  would  a  deed,  good  in  form,  purporting  to  convey  a 
fee-simple,  satisfy  the  contract,  leaving  the  plaintiff  to 
resort  to  the  covenants  in  the  event  of  a  failure  ©f  title? 

If  A  covenants  to  make  B  a  good  and  sufficient  deed 
to  a  piece  of  land,  B  is  not  obliged  to  take  such  deed 
unless  A  has  a  good  and  indefeasible  estate  in  the  land 


306  SUPREME  COURT  CASES, 

Fitch  V.  Casey. 

covenanted  to  be  conveyed.  The  contract  cannot  be  dis- 
charged by  a  tender  of  a  deed  in  the  usual  form,  puri3orting 
to  alien  the  fee,  unless  the  title  is  perfect  in  A,  and  the  land 
free  from  all  incumbrances.  Clark  v.  Redman^  1  Blackf., 
379;  Juchony.  Wa8s,  11  John,  525;  Tucker  v.  ^Yoods^ 
12  ib.^  190;  Ruhh  v.  Montgomery^  20  ih.^  15;  Lam-ence  v. 
Parker,  1  Mass.,  190. 

In  the  case  of  Judson  v.  Wass,  it  was  held  that  as  giving 
the  deed,  bond  and  mortgage,  were  to  be  simultaneous 
acts,  that  as  the  plaintiff  was  not  in  a  situation  to  convey 
a  title,  the  defendant  was  not  bound  to  perform  the  agree- 
ment on  his  part;  that  the  meaning  of  the  agreement  was 
not  merely  that  the  plaintiff  should  give  a  deed  with  war- 
rantee, but  that  he  was  able  to  convey  an  indefeasible 
title,  and  that  if  the  vendee  had,  according  to  the  terms  of 
the  sale,  paid  part  of  the  consideration  money,  and  the 
vendor  was  unable  to  convey  a  good  title,  the  vendee  might 
disaffirm  the  contract,  and  recover  back  the  money  which 
he  had  paid.  And  in  the  case  of  Jackson  v.  Hasbrouck, 
it  was  held  that  as  the  proof  showed  that  the  property 
to  be  conveyed  by  the  plaintiff  to  the  defendant  was  under 
lease  which  would  not  expire  until  long  after  the  bargain 
between  the  parties  was  to  have  been  consummated,  that 
it  came  clearly  within  the  principles  decided  in  the  case 
of  Judson  V.  Wass.  But  these  and  similar  decisions,  it 
will  be  found  on  examination,  were  made  in  those  cases 
where  the  acts  to  be  performed  by  the  parties  were 
simultaneous ;  or  in  other  words,  where  the  promises  were 
dependent. 

Therefore,  when  the  covenants  are  dependent,  the  con- 
veyance of  the  land  and  the  payment  of  the  money  must 
be  simultaneous,  and  there  must  be  an  existing  capacity 
to  convey  at  the  time  in  the  person  who  is  to  execute  the 
conveyance ;  but  where  the  covenants  are  independent^ 
and  the  payment  of  the  money  is  to  precede  the  convey- 
ance, it  is  no  excuse  for  the  non-payment  of  it  that  the 
other  party  has  not  a  pre-existing  capacity  to  convey  a 
good  tiHe,  unless  the  Ynv\x  whose  duty  it  is  to  pay  the 


TOWA  CITY,  JUNE,  1849.  307 

Fitch  V.  Casey. 

money  offers  to  do  so  on  receiving  a  good  title,  and  then 
the  other  party  must  give  him  a  good  title,  or  the  contract 
•svill  be  rescinded.  Eodd  v.  Moiitgomery^  above  referred 
to;  Champion  v.  Wldte^  5  Cow.,  509;  Green  v.  Green,  9 
CoAv.,  A(S ;  see  also  on  the  subject  Caswell  v.  Manufactur- 
W(j  Co.,  14  John,  453. 

In  the  case  under  consideration,  if  the  contract  had 
been  that  the  defendant  was  to  have  made  a  good  and 
sufficient  title  to  the  plaintiff  to  the  part  of  said  lot, 
upon  the  payment  by  said  plaintiff  of  $150,  the  pay- 
ment and  conveyance  would  have  been  simultaneous 
acts,  or  mutual  and  dependent,  and  the  plaintiff  would 
not  have  been  compelled  to  pay  the  money  unless  the 
defendants  could  have  made,  at  the  time  of  payment,  a 
good  and  indefeasible  title ;  and  in  the  event  of  payment, 
unless  such  title  could  have  been  made,  the  plaintiff 
could  have  rescinded  the  contract,  and  recovered  back 
the  money  so  paid.  So  if  payment  was  to  have  been 
made  in  work  for  a  piece  of  land  for  which  the  defendants 
had  no  title,  (which  fact  being  unknown  to  the  plaintiff,) 
and  the  defendants  had  contracted  to  make  a  good  title 
on  the  performance  of  the  work,  the  plaintiff  would  be  at 
liberty  to  rescind  the  contract,  and  not  obliged  to  do  the 
work ;  and  in  the  event  of  having  performed  the  work, 
he  would  be  as  much  entitled  to  recover  the  value  thereof 
as  he  would  have  been  to  recover  back  the  amount 
paid  on  a  money  contract.  If  the  plaintiff"  had  become 
satisfied  before  doing  the  work  that  Fitch  had  not  a  good 
title  to  said  part  of  said  lot,  he  could  have  disaffirmed  the 
contract ;  and  in  a  suit  against  him  upon  the  contract,  it 
would  have  been  a  good  defence  to  have  shown  a  want  of 
capacity  in  Fitch  to  convey.  The  plaintiff  has  not  sur- 
rendered any  of  his  rights  by  performing  on  his  part  the 
contract. 

As  the  plaintiff  was  under  no  legal  obligation  to  per- 
form the  work,  neither  is  he  required  to  receive  in  satis- 
fjiction  thereof  a  defective  title.  That  which  in  the  first 
]ilnce  wns  not  a  sufficient  consideration  to  hold  Casey  to 


308  SUPREME  COURT  CASES, 

The  State  v.  Chambers. 

an  observance  of  the  contract,  certainly  should  not  he 
regarded  as  a  sufficient  payment  after  the  contract  is 
performed.  If  there  was  any  evidence  that  Casey  was  to 
receive  only  such  a  title  as  Fitch  possessed,  an  entirely 
different  case  wonld  be  presented.  But  the  defendants 
admit  plaintiff's  right  to  a  good  and  sufficient  warrantee 
deed.  Such  a  deed  is  not  only  one  good  in  form,  with  the 
usual  covenants,  but  one  which  conveys  a  clear  indefea- 
sible title,  and  anything  less  than  this  is  not  a  good  and 
sufficient  warrantee  deed ;  and  when  parties  contract  for 
such  a  deed,  it  must  not  only  contain  all  the  necessary 
covenants,  but  the  grantor  must  possess  full  capacity  to 
make  it.  We  have  shown  that  the  title  in  the  defendant 
to  a  portion  of  the  lot  was  not  good,  and  hence  such  a 
deed  as  the  plaintiff  was  entitled  to  could  not  be  made  by 
the  defendants.  The  contract  was  mutual  and  dependent, 
Casey  to  do  the  work  and  defendants  to  make  the  deed, 
and  therefore  in  such  case,  according  to  the  decisions, 
Casey  is  not  bound  to  accept  of  a  defective  title,  but  may 
sue  and  recover  for  his  work  and  labour,  which  he  did  in 
the  court  below. 

Judgment  affirmed. 

J,  Scott  Richman,  for  plaintiffs  in  error. 

Wm.  G.  Woodwardj  for  defendant. 


->•»♦< 


THE  STATE  v.  CHAMBERS. 

Under  the  statute,  the  word  "  larceny  "  designates  grand  larceny,  as  contra- 
distinguished from  petit  larceny. 

An  indictment  upon  a  statute  should  state,  substantially,  if  not  in  the  very 
language  of  the  law,  all  the  circumstances  which  constitute  the  definition 
of  the  ofience  in  the  act. 

An  indictment  is  good  which  follows  the  words  of  the  statute  on  which  it  is 
founded. 


IOWA  CITY,  JUNE,  1849.  309 

The  State  v.  Chambers. 

The  section  of  the  statute  in  rehition  to  petit  larceny  regulates  t  aat  offence 

without  reference  to  the  preceding  sections. 
The  word  "steal"  has  a  uniform  signification,  and  means  felonious  taking 

and  carrying  away  the  personal  goods  of  another. 


Error  to  Linn  District  Court, 

Opinion  by  Greene,  J.  Au  indictment  was  found  against 
the  defendant,  and  on  motion  quashed,  on  the  ground  that 
no  indictable  offence  is  charged  therein. 

The  indictment  contains  two  counts,  and  is  commenced 
in  the  usual  form,  and  charges  that  William  H.  Chambers, 
at  the  time  and  place  specified,  "  one  box  of  percussion 
caps  of  the  value  of  25  cents,  of  the  personal  property  of 
one  Joshua  Glover,  then  and  there  being  found,  did  steal, 
contrary  to  the  form  of  the  statute  in  such  case  made  and 
provided,"  &c.  In  the  second  count,  Alexander  Glover  is 
named  as  the  person  from  whom  the  percussion  caps  were 
stolen,  and  differs  from  the  first  count  only  in  that  one 
particular. 

The  only  question  involved  in  the  case  is,  Did  the  court 
err  in  quashing  the  indictment? 

The  objection  taken  to  the  indictment  is,  that  the  charge 
is  too  general,  and  does  not  set  forth  all  the  ingredients 
of  the  offence,  upon  which  proof  should  be  required. 

The  offence  of  larceny  and  petit  larceny  is  defined  by 
statute.  Rev.  Stat.,  173,  §  §  40,  41.  These  sections  de- 
scribe the  offence  of  larceny ;  and  §  42  declares  that  if  the 
property  stolen  is  "of  the  value  of  $25  and  upwards,  it 
should  be  deemed  larceny."  The  forty-third  section  regu- 
lates the  measure  of  value  upon  certain  articles  stolen,  and 
§  44  pro\'ides,  that  "  every  person  duly  convicted  of  larceny 
shall  be  imprisoned  in  the  penitentiary,"  &c.  By  these 
sections,  it  is  clear  that  the  legislature  recognized  and 
applied  the  term  "  larceny''''  as  meaning  grand  Uirceuy  in 
contradistinction  to  petit  larceny.  To  that  sense  the 
application  of  those  sections  appears  to  be  exclusively  con- 
fined. Had  the  indictment  in  this  case  been  for  larceny 
as  limited  by  statute,  instead  of  netit  larceny,  it  should 


310  SUPREME  COURT  CASES, 

The  State  v.  Chambers. 

have  pursued  substantially  that  language  of  the  statute 
which  is  descriptive  of  the  offence.  It  is  well  settled  that 
an  indictment  upon  a  statute  must  state  substantially,  at 
least,  if  not  in  the  very  language  of  the  law,  all  the  cir- 
cumstances which  constitute  the  definition  of  the  offence, 
as  defined  in  the  act. 

But  the  indictment  in  tliis  case  is  founded  upon  the 
forty-fifth  section  of  the  act  referred  to,  which  provides 
that,  "  if  any  person  shall  steal  from  any  other  person  or 
persons,  or  from  any  dwelling-house,  or  from  any  water- 
craft  or  other  place  whatsoever,  any  moneys,  goods,  wares 
or  merchandize,  or  other  personal  property  or  thing  what- 
soever, of  a  less  value  than  $25,  every  person  so  offending 
shall  be  deemed  guilty  of  a  petit  larceny,  and  upon  con- 
viction thereof,  shall  restore  to  the  owner  or  owners  the 
thing  or  things  so  stolen,  and  be  fined  in  any  amount  not 
exceeding  five  times  the  amount  of  the  value  thereof,  and 
be  imprisoned  in  the  jail  of  the  county  not  exceeding  thirty 
days,  and  until  the  fine  and  costs  are  paid,  if  the  same 
shall  be  paid  within  twenty  days  from  the  expiration  of 
said  imprisonment."  This  section  of  itself,  it  will  be  seen, 
completely  regulates  the  offence  of  petit  larceny,  without 
any  reference  to  the  preceding  sections,  either  by  language 
or  implication.  The  rule  of  adjudging  the  value  of  stolen 
bank  notes,  bonds,  bills,  and  the  like,  as  prescribed  in 
§  43,  may  properly  be  recognized  as  alike  applicable  to 
cases  of  larceny  and  petit  larceny.  But  §  §  40,  41,42,  and 
44,  above  referred  to,  we  regard  as  exclusively  pertaining 
to  the  offence  of  larceny,  as  therein  defined.  Thus  viewing 
the  application  of  these  sections,  it  only  remains  for  us  to 
test  the  indictment  in  this  case,  under  the  specifications 
of  §  45,  which  determines  the  offence  of  petit  larceny. 

It  is  now  a  prevailing  rule,  that  an  indictment  is  good 
which  follows  the  words  of  the  statute  upon  which  it  is 
framed.  And  many  of  the  authorities  go  so  far  as  to  hold 
that  it  is  sufficient  if  the  words  used  in  an  indictment  are 
equivalent  to  those  of  the  statute,  or  of  the  same  substance 
to  a  reasonable  intendment.     State  v.  Bougher^  3  Blackf., 


IOWA  CITY,  JUNE,  1849.  311 

Parker  v.  Lewis. 

307  ;  U.  States  v.  Wilson,  1  Bald.,  78  ;  United  States  v. 
Lancaster^  2  McLean,  431  ;  State  v.  Duncan,  9  Porter, 
260  ;  State  v.  Helm,  6  Miss.,  263 ;  Chambers  v.  The  People, 
4  Scam.,  351  ;   The  State  v.  Noel,  5  Blackf.,  548. 

The  present  indictment  conforms  to  the  rule  recognized 
in  the  foregoing  cases  ;  it  describes  the  offence  in  the  very 
language  of  the  statute,  and  hence  we  can  but  regard  it  as 
sufficient. 

We  think  the  indictable  offence  clearly  and  specifically 
charged ;  its  character  cannot  be  mistaken,  nor  the  defend- 
ant misled  in  the  crime  preferred  against  him.  The  Mord 
^'  steaV  has  a  uniform  signification,  and  in  common  as 
"well  as  in  legal  parlance,  means  the  felonious  taking  and 
carrying  away  of  the  personal  goods  of  another. 

Judgment  reversed. 

William  Smyth,  for  the  state. 

/.  M,  Preston,  for  defendant  in  error. 


PARKER  V.  LEWIS. 

P.,  in  speatingof  L.,  said,  "  He  is  a  thief,  he  stole  my  wheat  and  gronnd  H 

and  sold  the  flour  to  the  Indians ; "  held  that  these  words  are  per  «e  action- 
able in  slander. 

Words  actionable  in  slander  by  implication  of  law  are  to  be  considered  as 
false  and  malicious,  unless  the  contrary  is  made  to  appear  by  the  evidence. 

In  slander,  when  the  words  spoken  are  actionable  per  «e,  special  damages 
need  not  be  alleged  or  proved. 

Error  to  Benton  District  Court. 

Opinion  by  Williams,  C.  J.     The  plaintiff  Lewis  com- 
menced his  action  on  the  case  for  slander,  against  the  de- 


31.2  SUPREME  COURT  CASES, 

Parker  v.  Lewis. 

fendant  Parker,  at  September  term,  1848,  of  tlie  district 
com-t  of  Benton  county.  The  declaration  is  in  the  usual 
form,  and  charges  that  the  defendant  "falsely  and  mali- 
ciously spoke  and  published,  of  and  concerning  the  plain- 
tiff, defamatory  words  charging  him  with  the  crime  of 
larceny."  The  plea  of  the  defendant  is,  Not  guilty.  The 
jury  rendered  a  verdict  for  the  plaintiff  for  the  sum  of 
$300.  Defendant's  counsel  moved  to  set  aside  the  verdict, 
and  for  a  new  trial,  for  the  reasons :  1.  That  the  verdict  is 
contrary  to  the  evidence  and  charge  of  the  court,  and 
should  have  been  for  the  defendant.  2.  Because  the 
damages  are  excessive. 

This  motion  was  overruled.  To  this  ruling  defendant, 
by  his  counsel,  excepted.  The  error  assigned  is,  ''that  the 
court  below  erred  in  overruling  the  motion  of  defendant 
for  a  new  trial,  and  in  entering  judgment  on  the  verdict 
of  the  jury." 

The  testimony  of  all  the  witnesses  in  the  case  is  set 
forth  in  the  bill  of  exceptions.  The  allegations  of  the  de- 
claration, as  contained  in  the  several  counts,  are  substan- 
tially sustained  and  established  by  proof.  The  evidence 
shows  that  the  plaintiff  Lewis  owned  a  mill;  that  he 
carried  on  the  business  of  a  miller  in  Benton  county ;  that 
the  defendant  Parker  had  taken  wheat  to  the  plaintiff's 
mill  to  be  ground  into  flour  •  that  a  part  of  the  wheat  had 
been  ground  and  tolled,  according  to  the  custom  of  the 
mill ;  that  a  part  remained  to  be  ground,  when  a  company 
of  Indians  came  to  the  mill  to  procure  flour ;  that  Lewis 
the  plaintiff  left  off  grinding  the  wheat  of  Parker,  for  the 
purp(>se  of  supplying  the  wants  of  the  Indians.  In  this 
state  of  things,  Parker  arrived  at  the  mill,  to  receive  the 
proceeds  of  the  wheat.  Finding  that  only  a  part  of  his 
wheat  had  been  ground,  he  was  displeased,  and  expressed 
his  dissatisfaction  in  harsh  terms ;  and  among  other  ex- 
pressions he  charged  Lewis  with  stealing  his  wheat  to 
supply  the  Indians  with  flour.  He  at  once  demanded, 
and  received  the  flour  which  had  been  made  and  tolled, 
together    with    the    residue    of    the    unground    wheat, 


IOWA  CITY,  JUNE,  1849.  313 

Parker  v.  Lewis. 

and  departed.  Several  witnesses  proved  that  Parker,  at 
different  times  and  places  afterwards  in  Benton  county, 
had  said  and  j^nLlished  that  "  old  Lewis  was  a  thief,  and 
had  stolen  his  wdieat,  and  ground  it,  and  sold  it  to  the 
Indians."  To  some  of  the  witnesses  he  stated  that  "  he 
had  employed  a  lawyer  to  prosecute  Lewis  for  it," 

It  ap2-)eared  that  a  part  of  the  testimony  was  of  words, 
spoken  more  tiian  one  year  before  the  commencement  of 
the  action.  This,  on  motion  of  defendant's  counsel,  was 
ruled  out  by  the  court,  and  the  jury  instructed  not  to  con- 
sider it  in  making  up  their  verdict. 

It  was  contended  by  defendant's  counsel,  on  the  trial 
below,  and  in  this  court,  that  the  words  proven  only 
involved  a  charge  of  fraud  or  misconduct  on  the  part  of 
Lewis,  in  his  business  of  a  miller ;  which  might  be  suffi- 
cient to  maintain  an  action  for  special  damages,  as  affect- 
ing him  injuriously  in  his  business  of  milling.  That  the 
words  spoken  could  not  be  construed  legally  so  as  to 
import  a  charge  of  larceny.  We  think  differently.  The 
words,  as  laid  and  proved,  are  actionable  in  themselves. 
They  d'otinctly  charge  upon  the  plaintiff  the  crime  of  lar- 
ceny ;  and  the  defendant's  intention  to  prosecute  him  for 
it.  The  witnesses  all  testify  of  the  words,  as  spoken  by 
the  defendant,  without  any  explanatory  or  qualifying 
statements  of  the  transaction  upon  which  he  founded  the 
charge,  which  would  tend  to  prevent  those  to  whom  he 
addressed  himself  from  coming  to  the  conclusion  that  he 
accused  Lewis  of  being  guilty  of  larceny.  The  fact  that 
the  plaintiff  was  a  miller  at  the  time,  and  that  the  wheat 
was  alleged-  to  have  been  stolen  by  him,  at  his  mill,  for 
the  purpose  charged,  does  not  necessarily  in  law  preclude 
the  possibility  of  a  commission  of  the  crime  of  larceny. 
The  wheat  might  have  been  taken  by  the  defendant  to 
the  plaintiff's  mill,  and  before  delivered  into  his  posses- 
sion as  miller,  have,  been  stolen  from  the  possession  oi 
defendant.  But  cases  may  and  do  occur,  in  which  persons, 
by  falsehood  and  fraud,  acquire  possession  of  property, 
with  the  consent  of  the  owner,  who  is  ignorant  of  that 
Vol.  IL  21 


314  SUPREME  COURT  CASES, 

Parker  v.  Lewis. 


intent.  In  such  case,  if  the  evidence  establishes  satisfac- 
torily that  the  felonious  intent  existed  in  the  mind  of  the 
person,  and  that  he  only  resorted  to  the  means  of  acquir- 
ing possession  of  the  property  to  carry  that  design  into 
execution,  by  appropriating  it  to  his  own  use,  he  would  be 
legally  chargeable  with  the  crime  of  larceny.  Such  "  tak- 
ing and  carrying  away  the  i)ersonal  goods  of  another  "  is 
as  much  larcen}^  as  that  where  the  possession  is  acquired 
without  the  knowledge  and  consent  of  the  owner.  The 
qtw  animo  is  the  gist  of  the  offence.  Tliat  must  be  estab- 
lished clearly.  This  done,  it  is  enough  in  law.  If  it  were 
otherwise,  the  cunning  and  learned  in  thiefcraft  would 
leave  those  of  their  fraternity  who  might  be  less  adroit 
than  themselves  to  suffer  the  ignominious  punishment  of 
larceny,  whilst  they,  no  less  guilty,  would  be  merely  put 
to  the  exercise  of  their  peculiar  tact  in  business,  to  litigate 
with  the  persons  whose  rights  they  had  assailed  in  a  civil 
proceeding  at  law.  The  charge  of  larceny,  as  proved,  is 
general  in  its  term.  It  is  made  so  as  to  stamp  the  char- 
acter of  the  plaintiff  as  that  of  a  thief  in  the  community. 

The  words  spoken  being  actionable,  by  implication  of 
law,  they  are  to  be  considered  as  false  and  malicious,  un- 
less the  contrary  is  made  to  appear  by  the  evidence.  No 
such  evidence  was  adduced.  Byrket  v.  Morokon,  7 
Blackf.,  82;  Yeates  v.  Reed^  4  ib.,  4G3;  Roberts  v. 
Camden,  9  East.,  93. 

It  often  occurs  that  they  who  design  to  slander  avoid 
direct  and  affirmative  charges  of  crime,  or  pretend  to 
make  some  qualification  of  the  words  spoken,  so  as  to  per- 
petrate the  injury,  and  at  the  same  time  escape  the  legal 
consequence.  This,  however,  will  not  avail,  if  the  words 
are  calculated,  as  spoken,  to  induce  the  hearers  to  susjject 
that  the  plaintiff  is  guilty  of  the  crime.  In  such  case  an 
action  will  be  maintained.  Starkie  on  Slander,  58;  Drum- 
mond  V.  Leslie,  5  Blackf.,  453.  It  has  also  been  decided, 
that  "  words  not  actionable  in  themselves,  may  express  a 
criminal  charge,  by  reason  of  their  allusion  to  some  extrinsic 
ffict,  (ir  in  cousoqiieiice  of  being  used  and  understood  in  a 


IOWA  CITY,  JUNE,  1849.  315 

Parker  v.  Lewis. 

l)articular  sense,  different  from  their  natural  meaning, 
and  thiis  become  actionable."  Ha^/s  ^  wife  v.  Mitchell  ^ 
7vife,  7  Blackf.,  117.  This  accords  with  the  spirit  of  the 
law,  which,  when  duly  enforced,  is  designed  to  establish 
the  right,  and  afford  adequate  redress  for  the  wrong. 

In  cases  like  this,  the  defendant,  to  avail  himself  of  the 
defence  here  attempted,  should  be  able  to  show,  on  proof, 
that  explanatory  words  were  used,  or  that  the  subject 
matter  in  allusion  to  which  the  words  were  spoken,  was 
clearly  such  as  to  show  they  were  not  actionable.  Bac.  Abr. 
Title,  Slander  R  ;  Beckett  v.  Sterrett,  4  Blackf.,  501.  In 
this  last  cited  case  the  parties  w^ere  partners  in  the  busi- 
ness of  merchandizing.  When  settliug  up  the  concern, 
Beckett  said  to  Sterrett,  "  You  pilfered  money  out  of  the 
store."  The  judge  who  delivered  the  oj)inion  of  the  com-t 
says,  "  There  were  no  words  referring  to  partnership  money 
in  the  custody  of  the  plaintiff,  nor  that  the  money  of  the 
partnership  was  the  subject  matter  in  reference  to  which 
the  words  were  spoken,  and  being  unexplained  by  the 
speaker,  we  will  not  search  for  reasons  to  rebut  the  pre- 
sumption that  he  intended  to  charge  the  plaintiff  with  a 
felouy.  In  cases  like  this,  where  by  the  defence  the  ques- 
tion is  raised  as  to  the  words,  whether  they  impute  a  felony, 
it  is  proper  for  the  jury  to  decide  it." 

It  was  also  contended  by  the  counsel  for  defendant,  that 
in  this  case  the  plaintiff  should  have  been  held  to  the 
allegation  and  proof  of  sjoecial  damages.  We  have  decided 
that  the  words  as  laid,  and  proved  to  have  been  spoken, 
are  actionable.  Where  such  is  the  case,  special  damages 
need  not  be  alleged,  or  proved. 

We  think  that  the  damages  are  not  excessive.  We  find 
uo  error  in  the  refusal  of  the  district  court  to  set  aside  the 
verdict  and  grant  a  new  trial. 

Judgment  afiSrmed, 

J,  P.  Cook  and  Wm.  Smytky  for  plaintiff, 

/.  M.  Preston,  for  defendant. 


316  SUPREME  COURT  CASES, 


Mears  v.  Garretson. 


MEAKS  V.  GARRETSOK 

Where  a  party  sues  out  a  writ  of  error  coram  nobis,  but  does  not  give  the 

notice  as  required  by  statute,  the  judgment  ma}'  be  affirmed. 
Errors  will  not  be  favorably  regarded  which  are  based  upon  the  negligence 

of  the  party  assigning  them. 
Where  a  party  hied  a  motion  in  the  district  court,  to  affirm,  for  want  of 

notice,  but  before  the  motion  was  decided  filed  a  demurrer,  it  will  not  be 

considered  an  appearance  or  waiver  of  notice. 

Error  to  Linn  District  Court. 

Opinion  hj  Kinney,  J.  In  this  case  judgment  was  ren- 
dered in  the  district  court  of  Linn  county,  against  the 
plaintiff  in  error,  upon  which  he  sued  out  a  writ  of  error 
coram  nobis. 

In  the  district  court  a  motion  was  made  to  dismiss  the 
writ  and  affirm  the  judgment,  for  the  reason  that  no  notice 
had  been  given  to  the  adverse  party  of  suing  out  the  same. 
This  motion  was  sustained  by  the  court,  and  the  judgment 
affirmed  with  ten  per  cent,  damages. 

This  decision  of  the,  district  court  is  assigned  for  error. 

The  statute  allowing  the  writ  of  error  coram  nobis,  pro- 
vides that  the  party  suing  out  such  a  writ  shall  cause 
notice  in  writing  to  be  served  upon  the  adverse  party  or 
his  attorney  ten  days  before  the  next  succeeding  term  of 
the  court,  and  if  ten  days  shall  have  elapsed  from  the  time 
of  serving  such  notice  and  the  fij'st  day  of  said  term,  the 
court  shall  proceed  to  try  and  determine  said  cause, 
whether  the  defendant  appear  or  not.  If  ten  days  do  not 
intervene,  the  cause  shall  be  continued,  &c.  Laws  of  1846, 
p.  51,  §3.    ^ 

The  question  presented  in  this  ease,  is  one  arising  upon 
a  construction  of  this  statute.  It  is  insisted  by  the  attor- 
ney for  the  defendant  in  error,  that  the  com-t,  by  virtue  of 
its  power  under  the  statute,  (to  adopt  such  rules  as  were 
necessary  to  govern  proceedings  of  this  kind,)  had  a  right 
under  those  rules  to  affirm  the  judgment  when  the  notice 
required  had  not  been  given.     The  statute  does  not  appear 


IOWA  CITY,  JUNE,  18-19.  317 

Mears  v.  Gurretsoii. 

to  contemplate  an  entire  absence  of  notice,  and  conse- 
quently there  is  not  any  provision  made  for  a  proceed- 
ing- wliere  notice  has  not  been  given,  and  we  are  led  to 
inquire  whether  by  legal  intendment  the  court  properly 
exercised  a  power  which  is  not  expressly  conferred  by 
statute.  The  legislatm-e  authorized  the  issuing  of  this 
writ  for  the  purpose  of  correcting  errors  in  fact,  and  defined 
the  powers  and  duties  of  the  court  while  sitting  as  a  court 
upon  its  own  alleged  errors.  The  statute  2:)rovides  for  the 
hearing  and  determining  of  the  cause  upon  notice  given, 
but  we  cannot  think  that  it  ever  was  the  intention  of  the 
legislature  that,  upon  default  of  the  party  to  give  notice, 
the  com-t  would  have  less  power  to  render  judgment  than 
if  notice  had  been  given.  If  this  were  the  case,  the  party 
in  default  could  take  advantage  of  his  own  laches,  and  as 
the  power  to  affirm  would  depend  upon  giving  notice,  a 
party  wishing  to  avoid  the  collection  of  a  judgment  might 
sue  out  his  writ,  fail  to  give  the  notice,  avoid  the  affirm- 
ance of  the  judgment,  and  in  this  manner  escape  the 
collection  of  judgments  in  the  district  court.  But  it  may 
be  said  that  the  writ  would  be  dismissed  for  the  want  of 
notice.  This  would  not  remedy  the  evil,  as  the  party 
being  then  restored  to  his  original  position,  could  sue  out 
•a  second  writ  of  error,  and  as  a  penalty  in  dameges  could 
only  follow  an  affirmance  of  the  judgment,  it  is  not  im- 
probable that  a  statute  which  is  only  remedial  in  its  char- 
acter might  be  made  an  engine  of  oppression.  "  Although 
the  s<"atute  does  not  expressly  authorize  the  court  to  render 
judgment,  in  case  notice  has  not  been  given,  yet  we  are 
not  disposed  by  a  forced  and  unnatural  adherence  to  the 
letter  of  the  statute,  to  give  it  an  effect  so  subversive  of 
justice  and  the  rights  of  judgment  creditors.  It  is  a  well 
settled  practice  to  give  remedial  statutes  a  liberal  con- 
struction, and  we  are  not  inclined  to  depart  from  that 
rule,  particularly  in  cases  where  injustice  would  be  the 
result  of  such  departure. 

Courts  are  not  disposed  to  regard  very  favorably  errors 
which  are  based  upon  the  negligence  of  the  party  assign- 


318  SUPREME  COURT  CASES, 


Brown  V.  Holleubeck. 


ing  them,  whereby  he  seeks  to  reverse  a  judgment  upon 
the  ground  that  he  was  in  default.  In  this  case  the  party 
virtually  says,  upon  the  motion  to  affirm  for  the  want  of 
notice,  that  if  he  had  given  the  notice  required  of  him  by 
statute,  the  court  would  have  had  power  to  affirm  the 
judgment,  but  as  he  failed  to  do  that,  the  court  cannot 
affirm,  and  the  action  of  the  court  predicated  upon  the 
fact  that  the  fjarty  did  not  give  notice,  is  assigned  in  this 
court  for  error  by  the  party  in  default.  We  think  upon 
this  assio'nment  that  the  court  did  not  err. 

The  second  error  alleged  is,  that  the  defendant  in  error 
filed  a  demurrer,  and  therefore  there  was  an  ajjpearance ; 
and  he  could  not  object  to  the  proceeding  for  the  want  of 
notice.  From  the  record  it  appears  that  the  first  step 
taken  by  the  defendant  below  was  to  file  a  motion  to 
affirm.  Before  that  motion  was  disposed  of,  he  filed  a 
demurrer.  The  object  of  filing  the  demurrer  undoubtedly 
was  to  be  prepared  in  the  event  of  the  motion  being 
decided  against  him,  and  as  that  motion  appears  to  have 
been  the  one  relied  upon,  and  as  it  was  entitled  to  and 
received  precedence,  we  cannot  think  his  rights  under 
the  motion  were  waived  or  prejudiced  by  his  filing  a 
demmrer. 

As  we  see  no  error  in  the  ruling  of  the  court,  the  judg- 
ment is  therefore  affirmed. 

Judgment  affirmed. 

N.  W.  Isbell  and  Wm.  Smyth,  for  plaintiff  in  error* 

/.  M.  PrestoUy  for  defendant. 


BROWN  V.  HOLLENBECK. 

It  is  error  to  render  a  judgment  by  default  if  a  plea  is  on  file  in  the  ease. 

After  a  plea  is  filed  the  issue  should  be  tried. 


IOWA  CITY,  JUNE,  1849.  319 


Brown  v.  Holleubeck. 


Error  to  Linn  District  Court. 

Opinion  hy  Greene,  J.  In  the  court  below  judgment 
was  rendered  against  Brown  by  default.  But  it  appears 
that  on  the  day  previous,  and  within  the  time  required  by 
rules  of  court,  a  plea  had  been  filed. 

The  practice  is  too  well  settled  to  admit  of  doubt,  that 
judgment  by  default  cannot  be  entered  if  a  plea  in  bar  is 
on  file  in  the  case.  Davis  v.  Brady ^  Morris,  101 ;  Elliott 
V.  Leak^  4  Mis.,  540;  Conell  v.  Marks,  1  Scam.,  391; 
Manlow  v.  Beuner,  ib. ;  Harris  v.  Muskingum  Man.  Co.^  4 
Blackf.,  267;  Maddox  v.  Pulliam,  5  Blackf.,  205. 

The  decisions  are  uniformly  to  the  effect,  that  after  a 
plea  is  filed  in  a  case,  the  issue  should  be  tried  by  a  jury, 
even  if  the  defendant  does  not  answer  on  being  called. 

As  counsel,  in  order  to  delay  the  collection  of  a  debt,  by 
securing  a  reversal  of  the  judgment,  may  file  their  plea  in 
a  silent  manner  without  notice  to  the  opposing  counsel  or 
the  court,  and  then  withdraw  or  otherwise  intimate  that 
they  have  no  defence,  the  district  judges  should  invariably 
inquire  whether  there  is  a  plea  on  file  before  suffei'ing  a 
judgment  by  default  to  be  entered. 

In  this  case  the  plaintiff  below  appears  by  the  record  to 
have  had  a  just  claim  against  the  defendant,  but  still  the 
judgment  must  be  reversed,  rather  than  depart  from  a 
salutary  and  well  settled  rule  of  practice. 

Judgment  reversed. 

ilT.  W,  Isbell,  for  plaintiff  in  error. 

/.  M,  FrestoUy  for  defendant. 


320  SUPREME  COURT  CASES, 


Chambers  v.  Games. 


CHAMBERS  v.  GAMES. 

In  an  action  of  debt  on  a  note  under  seal,  the  plea  of  non  est  factum  is 
admissible;  Imt,  as  it  puts  in  issue  the  execution  of  the  note,  it  should, 
under  tlie  statute,  be  verified  by  affidavit. 

Evidence  of  fraud,  covin,  or  illegality  of  consideration,  is  not  allowable  as 
defence  under  the  plea  of  non  est  factum,. 

It  is  not  sufficient  notice  of  special  matter  in  defence  of  an  action  under  the 
statute,  to  state  "that  the  note  had  been  given  for  a  claim  of  public  land, 
belonging  to  the  government  of  the  United  States,  on  which  there  was  no 
improvement  ;  or  that  there  was  no  consideration  for  the  note ;  or  that 
the  consideration  had  wholly  failed."  The  notice  should  specially  point 
the  particular  matter  relied  upon  in  defence  of  the  action. 

Proof  of  a  set-off  may  be  excluded  unless  defendant  has  filed  with  his  plea 
the  particular  items  of  his  demand. 

An  item  in  an  account,  designated  as  a  "cash  balance  on  settlement, 
$50,"  is  sufficiently  specific. 


Error  to  Linn  District  Court. 

Opinion  by  Williams,  C.  J.  George  W.  Games  insti- 
tuted his  action  of  debt  on  a  sealed  instrument  for  $150, 
and  laid  his  damages  at  $50,  &c.  The  note  bears  date 
November  11,  1836,  payable  on  or  before  the  1st  day  of 
May  thereafter,  with  a  credit  of  $15.62-|-  indorsed  thereon. 
To  tlie  declaration  of  the  plaintiff,  the  defendant  filed 
his  plea  of  nil  debit  with  notice,  &c. ,  to  which  the  plaintiff 
demurred.  The  demurrer  was  sustained.  The  defendant 
was  allowed  to  plead  over.  He  then  filed  his  plea  of 
non  est  factum,  together  with  the  notice  "  that  the  de- 
fendant will  offer  in  evidence,  and  prove  on  the  trial  of 
the  above  cause,  that  said  note  upon  which  the  above 
suit  is  brought  was  given  by  the  said  defendant  to  the 
said  plaintiff  for  a  claim  of  public  land  belonging  to  the 
government  of  the  United  States  ;  and  that  there  was  no 
improvement  on  said  claim."  2.  "  That  there  was  no  con- 
sideration for  the  giving  .up  of  the  said  note."  3.  "  That 
the  consideration  for  the  giving  of  said  note  has  wholly 
failed."     And  the  said  plaintiff  will  also  take  notice  that 


IOWA  CITY,  JUNE,  1849.  321 

Chambers  v.  Games. 

the  said  defendant  will,  on  the  trial  of  the  above  cause, 
offer  and  prove  the  following  items  of  set-off  against  the 
demand  of  the  said  plaintiff,  viz  : 

George  W.  Games, 

To  James  Chambers,  Dr, 
1837. 
To  one  lot  of  cloth,  commonly  called  Kentucky 

Jeans,  of  the  value  of          .             ,  ,     |20 

„  One  claim             ....  50 

,,  Fence,  rails,  and  breaking  prairie     •  ,60 

„  Work  and  labor                 ...  12 

„  Cash  balance  on  settlement  .              .  ,       50 

The  issue  being  joined,  the  cause  was  tried  by  a  jury, 
and  a  verdict  rendered  for  the  plaintiff,  for  $61.9,  and 
judgment  thereon  entered. 

It  appears  that,  on  the  trial,  the  plaintiff  having  read  the 
note  in  evidence  to  the  jury,  rested.  The  defendant  then 
offered  to  prove  that  the  note  was  given  for  a  claim  on  the 
public  land  of  the  United  States,  upon  which  there  was 
then  no  improvement.  Objection  to  this  evidence,  under 
the  first  and  third  notice,  was  made  by  the  plaintiff,  for 
the  reason  that  these  notices  were  too  indefinite.  The 
objection  was  sustained  by  the  court,  to  which  ruling 
defendant  excepted.  The  defendant  then  offered  the  same 
evidence  under  the  second  notice,  to  which  plaintiff  objected, 
for  the  reason  that  the  notice  was  of  want  of  consideration, 
and  the  matter  offered  was  oi  failure  of  consideration. 
The  objection  was  overruled,  and  the  witness  allowed  to 
testify.  The  evidence  being  heard,  was  ruled  out  as 
inadmissible,  on  the  second  point  of  notice. 

The  defendant  then  proceeded  to  give  evidence  under  the 
notice  of  set-off.  On  motion  by  plaintiff's  counsel,  this 
was  also  excluded,  on  the  ground  that  the  notice  was  in- 
sufficient as  to  the  specification  of  the  matter  of  set-off. 
Defendant  excepts  to  this  ruling  of  the  court,  as  follows  : 

1.  The  court  erred  in  refusing  to  admit  the  evidence 
offered  bv  the  defendant  below. 


822  SUPEEME  COURT  CASES, 


Chambers  v.  Games. 


1 


2.  By  ruling  from  the  jury  the  evidence  given  by  the 
witness  William  Chambers,  as  contained  in  the  bill  of  ex- 
ceptions. 

3.  By  refusing  to  allow  evidence  of  set-off,  as  offered  by 
defendant  below. 

4.  By  sustaining  the  motion  of  the  plaintiff  below,  to 
reject  the  notice  attached  to  the  plea  of  defendant  below. 

The  plea  of  9?on  est  /actum  puts  in  issue  the  execution 
of  the  note,  and  is  properly  pleadable  in  this  action,  being 
a  specialty,  and  constituting  the  foundation  of  the  suit. 
However,  to  render  it  effectual  in  putting  the  plaintiff  to 
the  proof  of  the  execution  of  the  note,  it  was  necessary 
that  the  defendant  should  verify  the  plea  by  his  oath. 
This  is  requD^ed  by  the  statute.  Rev.  Stat.,  471,  §  12,  pro- 
vides, '•  But  no  person  shall  be  permitted  to  deny  on  trial 
the  execution  of  any  instrument  in  writing,  whether  sealed 
or  not,  uj^on  which  any  action  may  have  been  brought, 
or  which  shall  be  stt  up  by  way  of  defence  or  set-off,  un- 
less the  person  so  denying  the  same  shall  file  his  or  her 
affidavit,  denying  the  execution  of  such  instnmient."  In 
this  case  the  plea  was  filed  without  the  affidavit.  We  will 
not  discuss  the  validity  of  the  plea,  as  pleaded,  there  hav- 
ing been  no  motion  made  to  set  it  aside,  and  as  it  was 
treated  as  the  general  issue  by  the  parties,  under  which 
the  defendant  gave  notice  of  the  matter  on  which  he  in- 
tended to  rely  for  defence  on  the  trial.  By  going  to  trial 
on  it  the  plaintifi'  accepted  it.  M^er  v.  McLean^  1  John., 
509.  We  will  add  here,  that  at  common  law  such  facts 
only  can  be  given  in  evidence,  under  the  plea  of  non  est 
factum,  as  will  go  to  show  that  the  defendant  did  not 
execute  the  writing  obligatory ;  such  defence  as  relates  to 
the  consideration  or  inducements  which  influenced  the 
obligor  to  make  it  cannot  be  made  under  it.  If  fraud, 
covin,  false  representation,  illegality  of  consideration,  or 
the  like  matters  which  assail  the  contract  itself,  aj^art  from 
the  execution  of  the  instrument,  constitute  the  defence, 
they  should  be  pleaded  specially  ;  or  when  jirovided  for  by 
statute,  as  therein  i)i'escribed,  such  defence  is  not  allow- 


IOWA  CITY,  JUNE,  1849.  323 

Chambers  v.  Gaines. 

able  under  a  general  plea  of  non  est  factum.  Any  fact 
whicli  will  go  to  show  that  the  defendant  never,  in  the  eye 
of  the  law,  executed  the  writing  obligatory,  may  be  given 
in  evidence  under  this  plea.  Hughes  v.  Williams,  3  Blackf, 
170;  V'rooman  v.  Phel])S,  2  John.,  177;  Dorr  v.  Munsell, 
13  John.,  439  ;  Dale  v.  Rosevelt,  9  Cow.,  307.  The  ruling 
of  the  district  court,  in  rejecting  the  evidence  offered  by  the 
defendant  under  the  plea  of  non  est  factum,  was  cor- 
rect. There  is  none  of  it  w^hich  relates  to  the  execution  of 
the  instrument,  but  to  the  consideration  of  the  contract 
only. 

AVe  will  now  proceed  to  the  question  arising  upon  the 
matter  of  notice,  on  which  the  defendant  relied  for  defence 
to  the  action. 

After  pleading  non  est  factum^  the  defendant,  instead  of 
pleading  specially,  availed  himself  of  the  statutory  pro- 
vision, which  is  as  follows :  "  The  defendant  may,  in  his 
defence,  plead  specially,  or  may  plead  the  general  issue, 
and  give  notice  in  Avritiug  under  the  same,  of  the  special 
matters  intended  to  be  relied  on  for  a  defence  on  the  trial, 
under  which  notice,  if  adjudged  by  the  court  to-  be  suffi- 
ciently clear  and  explicit,  the  defendant  shall  be  permitted 
to  give  evidence  of  the  facts  therein  stated,  as  if  the  same 
had  been  specially  pleaded,  and  issue  taken  thereon." 
Rev.  Stat.,  470,  §  12.  This  enactment  provides  for,  and 
allows  a  departure  from,  the  common  law  practice  of  plead- 
ing, and  must  be  substantially  complied  with.  We  have 
abeady  shown,  by  the  rules  of  common  law  pleading,  the 
evidence  of  Chambers,  as  it  relates  altogether  to  the  con- 
sideration of  the  contract,  and  not  to  the  execution  of  the 
instrument,  was  properly  ruled  out,  as  inadmissible  under 
the  general  plea  of  non  est  factum.  We  will  now  examine 
and  see  whether  it  should  have  been  admitted  under  the 
notices.  The  defendant  was  under  the  necessity  of  plead- 
ing specially  as  at  common  law  ;  or,  it  was  his  privilege  to 
avail  himself  of  the  sttitutory  provision,  and  give  notice  in 
writing  of  the  special  matter  intended  to  be  relied  on 
for  a  defence  on  the  trial.     He  chose  to  avail  himself 


324  SUPREME  COURT  CASES, 


Chambers  v.  Games. 


of  the  latter.  Is  tlie  notice  sucli  as  is'  contemplated 
by  the  statute  ?  We  think  not.  It  is  too  general  in  its 
character.  The  statute  requires  "  notice  in  writing  0/  tlie 
special  matters^''  &c.  The  simple  statement,  "  that  the 
note  had  been  given  for  a  claim  of  public  land  belonging 
to  the  government  of  the  United  State.;,  on  which  there 
was  no  improvement,  that  there  was  no  consideration  for 
said  note,  that  the  consideration  for  said  note  had  wholly 
failed,"  gave  to  the  plaintiff  no  information  of  the  special 
matter^  the  facts  intended  to  be  relied  on  for  a  defence  on 
the  trial.  It  is  not  every  contract  for  the  sale  of  a  claim 
of  the  public  land  of  the  United  States,  on  which  there  is 
no  improvement,  that  is  necessarily  void  for  want  of  con- 
sideration, fraud,  &c.  It  is  one  thing  to  inform  the 
plaintiff  that  the  pleas  of  no  consideration  and  failure  of 
consideration  will  be  pleaded  as  a  defence  to  the  action, 
and  quite  another  thing  to  give  him  notice  of  the  special 
matter  that  will  be  relied  on.  In  permitting  a  party  to 
an  action  to  lay  aside  the  common  law  form  of  pleading, 
and  to  choose  a  more  simple  and  convenient  mode  of  pre- 
senting his  case,  the  legislature  certainly  did  not  intend 
to  dispense  with  the  substance.  The  object  of  the  pica  is 
to  apprise  the  plaintiff  of  the  matter  of  defence  to  his 
action,  in  order  that  in  answer  to  his  declaration,  a  proper 
issue  may  be  formed  for  trial  upon  the  law  and  facts  in- 
volved. The  ma':;aial  facts,  the  special  matter  constituting 
the  plea,  should  be  set  forth  in  the  notice,  so  as  to  inform 
the  plaintiff  of  the  substance  of  the  defence,  that  he  may 
have  an  opportunity  to  meet  them,  and  if  he  can,  to  con- 
tradict them.  This  was  the  manifest  intention  of  the 
legislature,  and  justice  and  reason  dictate  its  propriety. 
The  notice  given  in  this  case,  as  to  the  consideration  of  the 
writing  obligatory,  is  general,  not  special  of  the  matter 
relied  on  for  a  defence  to  the  action.  The  court  therefore 
ruled  correctly  as  to  this  point  in  relation  to  the  con- 
sideration. Brazee  et  al.  v.  Blake  et  al.,  5  Ohio,  211; 
Rc'/nolds  et  al.  v.  Bogcrs,  ib.,  104  ;  Shepard\.  Merrill^  13 
John,,  475;  Black  v.  Ilarriiigton,  4  Vt.,  69. 


IOWA  CITY,  JUNE,  1849.  325 

Chambers  v.  Gaines. 

The  next  and  last  question  is  as  to  the  notice  of  set-off 
and  bill  of  particulars  therewith  filed  for  allowance  against 
the  demand  of  the  plaintiff. 

The  statute  provides,  "  that  the  defendant  or  defendants 
in  any  action  brought  upon  any  contract  or  agreement, 
either  express  or  implied,  having  claims  or  demands  against 
the  plaintiff  in  such  actions,  may  plead  the  same  or  give 
notice  thereof  under  the  general  issue,  as  is  provided  in 
the  twelfth  section  of  this  act,  and  the  same  or  such  part 
thereof  as  the  defendant  shall  prove  on  trial  shall  be  set- 
ojf  and  allowed  against  the  plaintiff's  demand,  and  a  ver- 
dict shall  be  given  for  the  balance  due."  Rev.  Stat.,  472, 
§  17.  By  this  section  the  defendant  is  permitted  to  set- 
off any  demands  which  he  may  have  against  the  plaintiff. 
The  tenth  section  provides,  that  "^  it  shall  be  the  duty  of 
the  defendant  or  defendants  in  all  cases  where  he,  she,  or 
they  intend  to  prove  on  trial  any  accounts  or  demands 
against  the  plaintiff  or  plaintiffs,  to  file  with  his  jjlea  a 
bill  of  the  particular  items  of  such  accounts  or  demands, 
and  no  other  accounts  or  demands  shall  be  suffered  to  be 
proved  to  the  jm*y  or  court  on  the  trial."     Rev.  Stat.,  470. 

Here  are  express  provisions  providing  for  demands  of 
the  defendant,  and  the  manner  in  which  they  shall  be  set- 
off against  those  of  the  plaintiff.  If  presented  under  a 
notice,  as  in  this  case,  it  is  to  be  done  as  is  required,  in  rela- 
tion to  the  special  matter,  as  provided  for  in  the  twelfth 
section  above  cited.  This,  as  we  have  already  decided  on 
the  other  points,  is,  that  the  notice  must  be  one  in  fact, 
setting  forth  the  material  points  upon  which  the  plea  rests, 
and  not  merely  the  sum  or  conclusion  of  facts  as  deter- 
mined by  the  person  pleading.  So  the  defendant,  intend- 
ing to  prove  any  accounts  or  demands  against  the  plain- 
tiff, must  file  with  his  plea  a  bill  of  the  particular  items 
of  such  account  or  demands,  or  he  will  not  be  allowed  to 
prove  them  to  the  court  and  jury.  The  intention  of  the 
legislature  is  so  clearly  expressed  here  that  it  cannot  be 
misapprehended.  The  particular  items  of  the  account  or 
demand  must  be  given  in  number  and  character,   with 


326  SUPREME  COURT  CASES, 


Viele  V.  Oi?ilvie  &  Co. 


the  date  as  well  as  the  sum,  so  that  the  plaintiff  ma}^  have 
an  opportunity  of  testing  their  truthfulness.  The  defend- 
ant in  this  case  filed  his  set-off,  accompanied  by  a  bill  of 
particulars,  a  considerable  portion  of  which  was  objec- 
tionable, it  is  true ;  but  we  think  the  court  should  have 
allowed  the  defendant  to  give  proof  to  the  jury  of  the  last 
item,  being  cash  balance  on  settlement  $50.  This,  we 
think,  as  a  particular  item,  is  sufficiently  specific  to  ap- 
prise the  plaintiff  of  all  that  would  be  necessary  to  enable 
him  to  test  its  validity  before  the  court  and  jury  on  the 
trial.  Indeed  if  a  settlement  (as  this  purports  to  have  a 
date  subsequent  to  that  of  the  note  sued)  had  been  made 
by  the  parties,  and  thereu23on  a  balance  has  been  found 
due  to  the  defendant,  evidence  of  these  facts,  if  it  had 
been  suffered  to  go  to  the  jury,  might  have  established  a 
defence  to  the  demand  of  the  plaintiff.  There  is  there- 
fore error  in  this  ruling  of  the  court. 

We  have  examined  and  decided  the  question  presented 
in  the  argument  of  this  case  more  at  length  than  we 
should  have  done,  had  we  not  considered  it  important  to 
settle  the  practice  as  to  the  matters  involved. 

Judgment  affirmed. 
.?V.  W.  Isbell  and  J.  M.  Preston,  for  plaintiff  in  error. 
W,  G,  Woodward  and  Wm.  Simjth,  for  defendant. 


VIELE   V.   OGILVIE  &  CO. 

A  mere  indorsement  of  a  payment  on  a  note  is  not  prima  facie  evidence  of 
paj'ment,  nor  is  it  evidence  of  a  new  promise  to  revive  a  note  barred  by 
tlie  statute  of  limitations,  or  discharged  by  a  decree  in  bankruptcy,  unless 
it  is  shown  that  the  iudorsument  was  made  by  the  defendant,  or  by  hifl 
consent,  or  that  he  actually  paid  the  amount  indorsed. 

Error  to  Muscatine  District  Court. 

Opinion  by  Greene,  J.     An    action  of  assumpsit  by 
Ogilvie  k  Co.  against  Viele,  on  a  promissory  note  dated 


IOWA  CITY,  JUNE,  1849.  327 

Viele  V.  Ogilvie  &  Co. 

September  19,  1842.  The  note  is  for  the  payment  of 
$78.35,  with  interest  at  10  per  ceDt.  per  annum,  and 
contains  an  indorsement  of  seventy-one  and  forty-three 
sixtieth  bushels  wheat  at  50  cents  per  bushel,  amounting- 
to  $35.8(5,  which  indorsement  purports  to  have  been  made 
October  13,  1843. 

Plea,  ffeneral  issne  and  notice  of  a  certificate  in  bank- 
ruptcy  in  discharge  of  indebted u^'ss,  averring  the  decree  to 
have  been  made  on  the  3d  day  of  April,  1843.  By 
consent  of  parties  a  jury  was  waived  and  the  cause  sub- 
mitted to  the  court,  which  found  for  the  plaintiffs  below, 
and  rendered  a  judgment  in  their  favor  for  $74.9.  There- 
upon a  motion  was  made  by  the  defendant  for  a  new  trial, 
on  the  ground  that  the  court  rendered  judgment  under  the 
mistaken  apprehension  that  the  discharge  in  bankruptcy 
took  place  before  the  note  was  given,  which  resulted  from 
the  mistake  of  a  figure  in  one  part  of  the  record.  This 
mistake  was  clearly  shown  by  other  portions  of  the  record, 
and  appears  to  have  been  conceded  by  the  court,  but  the 
motion  for  a  new  trial  was  overruled  on  the  ground  that 
there  had  been  a  promise  to  pay  the  note  since  the  defend- 
ant's discharge  under  the  bankrupt  law.  We  learn  from 
the  bill  of  exceptions  that  the  only  evidence  before  the 
court  tending  to  ^how  such  subsequent  promise  was  the 
indorsement  of  payment  to  which  we  have  referred. 

Though  there  are  three  errors  assigned  in  this  case, 
there  is  properly  but  one  question  involved.  Is  a  naked 
indorsement  of  payment  on  a  note  prima  facie  evidence 
of  such  payment,  and  sufficient  to  establish  a  new  promise 
and  renewal  of  a  note  ?  If  not,  the  court  below  did  not 
exercise  a  sound  legal  discretion  in  overruling  the  appli- 
cation for  a  new  trial.  We  consider  it  a  well  settled  and 
salutary  rule  that  a  plaintiff  cannot  take  advantage  of  an 
indorsement  of  a  payment  on  a  note  as  evidence  of  a  new 
promise  to  revive  a  note  barred  by  the  statute  of  limita- 
tions or  discharged  by  a  decree  in  bankruptcy,  unless  he 
shows  such  indorsement  to  have  been  made  by  the  de- 
fendant, or  by  his  conseiit,  or  else  by  proof  of  payment  of 


328  SUPREME  COURT  CASES, 


Viele  V.  Ogilvie  &  Co. 


the  amount  indorsed.  A  mere  naked  indorsement,  with- 
out some  sucli  evidence  of  its  correctness,  is  not  sufficient. 
See  Concklin  v.  Pearson^  1  Riclm.,  S.  C,  391  ;  McGeaee 
V.  6^r^6r,  7  Port.,  537.  Stut  y.  Mathews,!  Yarg.,  2,1?,.  In 
Waterman  v.  Burbank,  8  Metcalf,  352,  the  plaintiff  gave 
in  evidence  an  indorsement  of  payment  written  by  him- 
self, and  dated  within  six  years  next  before  the  suit  was 
commenced,  as  follows  :  ''  Received  Cotton  Mill  order,  in 
part,  $16;"  also  an  order  of  the  same  date  drawn  on  the 
plaintiff  in  favor  of  the  defendant  by  a  third  person  for 
$22.38,  and  directing  the  plaintiff  to  charge  the  same  to 
the  Cotton  Mill ;  also  an  acknowledgment  of  the  defendant 
written  on  the  back  of  the  order  that  he  had  "received 
the  within  as  specified."  It  was  held  to  be  not  a  sufficient 
proof  of  payment. 

We  think  that  at  least  as  much  certainty  of  proof  should 
be  required  to  revive  a  debt  barred  by  a  proceeding  in 
bankruj)tcy  as  is  required  under  a  statute  of  limitations. 
By  a  parity  of  reasoning,  then,  the  evidence  in  the  present 
case  was  altogether  inadequate  to  establish  a  payment  on 
the  note,  or  its  resulting  consequence  a  new  promise,  sub- 
sequent to  the  date  of  the  certificate  in  bankruptcy.  It  was 
therefore  error  for  the  court  below  to  refuse  the  applica- 
tion for  a  new  trial,  on  the  assumption  that  a  subsequent 
promise  resulted  from  an  ex  parte  indorsement.  It  must 
be  apparent  that  a  rule  giving  effect  to  evidence  which 
the  holder  of  a  note  may  at  any  time  manufacture  for 
himself,  in  order  to  evade  a  decree  of  bankruptcy  or  a 
statute  of  limitations,  would  be  subject  to  great  abuse,  to 
a  dangerous  evasion  of  law,  and  a  corrupting  perversion 
of  truth. 

Judgment  reversed. 

WnL  G.   Woodward,  for  plaintiff  in  error. 

W,  P.  Clark  and  J.  S,  Richman,  for  defendant. 


CASES  IN  LAW  AND  EQUITY. 


DETERMINED  IN  THE 


SUPREME  COURT  OF  THE  STATE  OF  IOWA, 

DUBUQUE,  JULY  TERM,  A.D.  1849. 
In  ike  Third  Year  of  the  Stale, 


^rejSent : 

Hon.  JOSEPH  WILLIAMS,  Chief  Justice, 
Hon.  GEORGE  GREENE,  Jvdge, 


GOODWIN"  et  al  v.  THOMPSON 

A  father  cannot  recover  damages  against  a  person  for  procuring  the  marriage 
of  his  daughter,  who  in  good  faith  and  without  force  or  imposition  entered 
into  a  marriage  contract  when  between  twelve  and  fourteen  years  of  age. 

The  statute  which  provides  that  male  persons  of  the  age  of  eighteen  years 
and  female  persons  of  the  age  of  fourteen  years  may  be  joined  in  marriage, 
is  merely  cumulative,  and  does  not  abrogate  the  common  rule,  which  fixes 
the  age  of  marriage  consent  for  males  at  fourteen  and  for  females  at  twelve 
years  of  age. 

A  rule  of  common  law  is  not  repealed  by  implication. 

The  right  of  a  husband  over  his  wife  is  paramount  to  that  of  her  parent. 

Error  to  Dubuque  District  Court. 

Opinion  by  Williams,  C.  J.     Rufus  Thompson  insti- 
tuted his  action  for  trespass  on  the  case  against  Archibald 
Goodwin,   John    Gilson   and    Benjamin   Alcorn,    in    the 
Vol.  II.  22 


.330  SUPREME  COURT  CASES, 


I 


Goodwill  V.  Thompson. 


district  court  of  Dubuque  county,  to  recover  damag'es  for 
enticing  and  procuring  liis  daughter  Louisa  Thompson  to 
marry  one  Jetfcrsun  Goodwin  against  his  consent,  thereby 
depriving  him  of  his  right  to  the  control,  guardianship, 
society  and  service  of  the  said  Louisa,  she  being  his 
daughter  and  a  minor. 

When  the  cause  was  called  for  trial  in  the  district  court 
the  attorneys  for  the  parties  appeared.  Whereupon  the 
attorneys  for  the  defendants  filed  their  general  demurrer 
to  the  first  count  in  the  plaintiff's  declaration  upon  which 
issue  was  taken.  The  demurrer  was  overruled.  The 
parties,  by  their  attorneys,  then  filed  of  record  in  the  case 
the  following  agreements : 

"  It  is  agreed  between  the  parties  to  this  cause,  that  a 
marriage  license  was  issued' by  the  clerk  of  the  district 
court  of  Jackst)n  county,  to  Jefferson  Goodwin,  in  the 
month  of  ]\Iarch  last,  authorizing  any  legal  officer  to 
solemnize  marriage  between  Jefferson  Goodwin  and  Louisa 
Thompson,  and  that  by  virtue  of  said  license,  said  parties 
were  "married  in  Jackson  county,  in  said  month  of  March, 
by  an  acting  justice  of  the  peace  in  said  county,  and  that 
this  agreement  is  to  stand  in  lieu  of  and  be  equivalent  to 
a  certified  copy  of  the  records  of  the  clerk  of  the  district 
court  of  Jackson  county,  of  said  marriage." 

"It  is  also  agreed  by  the  parties  that  this  cause  shall 
be  continued  to  the  next  term  of  this  court  for  trial  on  the 
merits ;  that  the  cause,  in  the  meantime,  shall  be  tried 
in  the  supreme  court  on  the  demurrer  to  the  first  count  in 
the  declaration ;  and  that  the  issue  is  to  be  made  up  to  all 
the  counts  within  ten  days  after  the  session  of  the  supreme 
court  in  July  next.  The  costs  to  abide  the  final  event  of 
the  suit.     This  agreement  to  be  part  of  the  record." 

These  agreements  were  signed  by  the  attorneys  of  the 
parties  and  are  of  record  in  the  case. 

The  only  question  for  adjudication  is  presented  by  the 
defendants'  general  demurrer  to  the  first  count  of  the 
plaintiff's  declaration. 

In  this  count  the  plaintiff  complains    "  that  the  said 


DUBUQUE,  JULY,  1849.  331 

Goodwin  v.  Thompson. 

defendants,  combining  and  confederating  together,  and 
contriving,  &c.,  to  injure  and  aggrieve  the  said  plaintiff, 
and  to  deprive  him  of  the  service  and  assistance  of  one 
Louisa  Thompson,  the  daughter  and  servant  of  the  said 
plaintiff,  and  a  minor  under  the  age  of  fourteen  years  ;  as 
also  to  deprive  the  said  plaintiff  of  the  companj',  society, 
guardi;i:iship,  education,  nurture,  control  and  service  of 
his  said  daughter,  heretofore,  to  wit :  on  the  tenth  day  of 
February,  in  the  year  of  our  Lord  one  thousand  eight 
hundred  and  forty-nine,  and  on  divers  days  and  times 
between  that  day  and  the  filing  of  this  declaration,  at  the 
county  aforesaid,  did  unlawfully,  wrongfully,  unjustly, 
wickedly  and  fraudulently  entice,  persuade  and  procure 
the  daughter  nnd  servant  of  the  said  plaintiff  to  depart 
from  and  out  of  the  care,  control,  guardianship  and  service 
of  him,  the  said  plaintiff,  and  to  marry  one  Jefferson 
Goodwin,  to  wit,  at  the  county  aforesaid."  The  declara- 
tion then  proceeds  to  aver,  that  in  consequence  of  the 
procurement  and  enticement  aforesaid,  the  said  Louisa, 
the  daughter  and  servant  of  the  plaintiff,  departed  from 
and  left  the  house,  care,  guardianship  and  control  of  the 
lilaintiff  aforesaid,  and  continued  to  the  time  of  the  com- 
mencement of  this  suit  from  his  care,  control,  &c.  Then 
follows  the  allegation,  that  the  plaintiff  has  sustained 
great  damage  by  reason  of  the  loss  of  her  society,  service, 
expenditure  of  money  and  time  in  his  endeavors  to  pro- 
cure her  return,  anxiety  and  trouble  of  mind,  &c.  All  of 
which  doings,  he  a^'ers,  was  without  his  knowledge  or 
consent,  and  against  his  will.  Damages  are  alleged  to 
the  amount  of  $200. 

The  only  question  to  be  decided  is  this :  Can  a  father 
maintain  an  action  of  trespass  on  the  case,  and  recover 
damages  for  the  loss  of  service,  &c.,  against  a  person  or 
persons  for  procuring  the  marriage  of  his  daughter,  who 
is  a  minor,  when  she  has  voluntarily  and  in  good  faith 
entered  into  the  marriage  contract  without  any  allegation 
of  force  or  imposition  having  been  practised  on  her  by 
her  husband  or  the  defendants,  so  far  as  the  marriage . 


332  SUPREME  COURT  CASES, 

Goodwin  v.  Thompson. 

is  concerned,  and  wlien  the  marriage  has  been  legally 
solemnized  in  good  faith  ? 

By  the  agreement  of  the  parties  of  record  in  the  case, 
it  appears  that  the  marriage  was  voluntarily  contracted 
and  solemnized  in  accordance  with  the  law  of  the  state, 
and  it  does  not  appear  that  there  is  any  complaint  on  part 
of  the  parties  to  the  marriage  contract,  the  husband  and 
wife.  The  action  is  simply  at 'the  instance  of  the  father 
for  damages  alleged  to  have  been  sustained,  for  the  loss 
of  his  daughter's  service,  society,  &c. 

The  legislature  of  this  state  have  linacted,  "  that  male 
persons  of  the  age  of  eighteen  years,  and  female  persons 
of  the  age  of  fourteen  years,  not  nearer  of  kin  than  first 
cousins,  and  not  having  a  hnsband  or  wife  living,  may  be 
joined  in  marriage.  Provided  always^  That  male  persons 
under  twenty-one  years,  female  persons  under  the  age 
of  eighteen  years,  shall  first  obtain  the  consent  of  their 
father  respectively,  or,  in  case  of  the  death  or  incapacity 
of  their  fathers,  then  of  their  mothers  or  guardians."  The 
statute  also  provides,  that  ministers  of  the  gospel  com- 
plying with  its  requisites,  and  justices  of  the  peace,  may 
solemnize  the  marriage  contract ;  and  directs  that  a 
marriage  license  shall,  before  marriage,  be  issued  by  the 
clerks  of  the  district  court  of  the  county  wherein  the 
ceremony  shall  be  performed. 

The  11th  section  of  the  act  imposes  a  forfeiture  of 
$500  on  any  justice  or  minister  who  shall  solemnize  any 
marriage  within  the  state,  without  a  compliance  with  the 
statute,  and  also  forbids  any  unauthorized  person  to 
solemnize  the  contract  under  the  same  penalty. 

By  the  common  law  marriage  is  held  to  be  a  c'_vil  con- 
tract. To  render  the  contract  valid  the  parties  must  be 
willing  and  able  to  contract.  The  age  of  consent  for  a 
female  has  been  fixed  by  the  civil  law  at  twelve  years,  and 
the  male  at  fourteen.  Under  that  law,  if  the  parties  were 
under  the  age  prescribed,  the  marriage  was  only  held  to  be 
inchoate  and  imperfect ;  and  when  either  of  them  arrived 
at  the  age  of  consent  aforesaid,  they  might  disagree  and 


DUBUQUE,  JULY,  1849.  333 

Goodwin  v.  Tliompson. 

declare  the  marriage  void.  The  canon  law,  however,  had 
regard  to  the  constitution  more  than  the  age  of  the 
parties,  and  therefore  held,  that  if  they  were  in  that  re- 
spect competent,  the  marriage  was  good,  whatever  the  age 
might  he.  By  the  common  law  of  England,  it  was  held 
that  if  a  marriage  was  solemnized  between  parties  who 
had  not  arrived  at  the  age  of  consent,  still,  when  they 
arrived  at  that  age,  if  they  agreed  to  continue  together  as 
man  and  wife,  they  need  not  be  married  again.  Black. 
Com.,  436,  437. 

The  same  principles  are  recognized  as  being  established 
by  the  common  law  by  Chancellor  Kent  in  his  2  Com- 
mentary, 78.  Discussing  the  common  law,  as  to  the 
capacity  of  i)ersons  to  make  the  marriage  contract,  after 
fixing  fourteen  years  for  males  ajid  twelve  years  for  females 
as  the  age  of  consent,  he  proceeds  to  say  that  "  the  law 
supposes  that  the  parties  at  that  age  have  sufficient  dis- 
cretion for  such  contract,  and  they  can  then  bind  themselves 
irrevocably,  and  cannot  be  permitted  to  plead  even  their 
egregious  indiscretion,  whatever  the  result  of  it  may  be. 
Marriage  before  that  age  is  voidable  at  the  election  of 
either  party  on  arriving  at  the  age  of  consent,  if  either  of 
the  parties  be  under  age  when  the  contract  is  made." 

Such  being  the  common  law  in  force  within  this  state, 
it  is  clear  that  this  marriage  is  not  void,  notwithstanding 
the  statute.  Statutes  will  not  be  construed  to  have  an 
effect  beyond  that  which  is  to  be  gathered  from  the  plain 
and  direct  import  of  the  terms  used  in  declaring  them. 
Effect  by  implication  will  not  be  given  to  them,  so  as  to 
change  a  well  established  principle  of  common  law. 

The  act  regulating  marriages  within  this  state  merely 
declares  what  description  of  persons  "  may  be  joined  in 
marriage,"  and  what  are  the  respective  duties  of  ministers 
and  justices  of  the  peace,  who  are  authorized  thereby  to 
solemnize  the  marriage  contract.  By  it  the  solemnization 
of  the  contract  by  such  minister  or  officer,  without  a  com- 
pliance with  its  requisitions,  is  punishable  by  a  penalty 
of  |500.       A  due  regard  for  the  public  morals  and  the 


334  SUPREME  COURT  CASES, 

Goodwin  v.  Thdmpson. 

interest  of  the  community,  in  view  of  the  marital  rights, 
duties  and  obligations,  is  recognized  and  inculcated.  The 
sanction  of  religious  and  legal  rights  is  enjoined  to  elevate 
this  contract,  so  far  as  form  is  concerned  in  making  it, 
above  all  others  among  men.  Such  a  provision,  by  statute, 
whilst  it  designates  the  moral  character  of  a  community, 
operates  as  a  preservative  of  the  interests  which  are  in- 
volved in  one  of  the  great  relations  which  constitute  the 
foundation  of  society. 

In  this  brief  view  of  the  common  law,  in  relation  to  this 
subject,  then,  how  does  the  case  stand  as  affected  by  the 
statute?  There  is  no  prohibition  of  the  marriage  of  a 
minor,  who  may  be  under  fourteen  years  of  age,  expressed. 
The  statute  is  merely  cumulative  in  its  operation,  and  can- 
not have  the  effect  of  repealing  the  common  law,  so  as  to 
render  the  contract  void.  Such  has  been  the  decision  of 
this  court,  as  well  as  the  courts  of  last  resort  in  nearly  all 
the  states  of  the  Union,  in  declaring  the  effect  of  statutes 
similar  to  ours.  Wycoff  n.  Boggs,  2  Halsted,  128;  2  N. 
H.,  268;  3  Marshall,  370. 

We  will  now  consider  the  case  in  view  of  the  rights  of 
the  parent,  the  child  and  the  interests  of  society,  as  exist- 
ing in  this  country. 

The  parties  to  the  contract  being  capable  of  making  it, 
and  it  being  valid  in  law,  so  as  to  secure  the  parties  to  it 
all  their  legal  rights,  and  bind  them  to  the  observance  of 
the  obligations  and  duties  involved,  it  clearly  follows  that 
the  law  holds  the  claims  of  the  husbiand  from  the  time  of 
the  marriage  as  paramount  to  those  of  the  parent.  The 
common  law  observes  the  divine  injunction,  that  "  forsak- 
iilg  father  and  mother,  the  husband  and  wife  shall  cleave 
together,  and  that  they  twain  shall  be  one  flesh  ;"  in  effect 
recognizing  a  great  and  holy  domestic  relation,  essential 
to  the  well-being  of  our  race  and  conservative  of  the  par- 
amount interests  of  society  and  government.  Thus  the 
natural  tendency  of  the  human  heart,  under  the  control  of 
divine  and  munici])al  law,  is  made  to  operate  as  a  blessing 
to  man.  instead  of  a  curse. 


DUBUQUE,  JULY,  1849.  335 

Goodwin  v.  Thompson. 

But  it  is  contended  tliat  the  common  laAv  gives  the 
parent  the  control,  society  and  service  of  the  child  during 
the  entire  term  of  minority,  whicli  is  until  the  age  of 
twenty-one  years.  This,  as  a  general  principle,  is  true. 
Every  general  rule,  liowever,  has  its  exception.  Exigency 
arising  from  circumstances  beyond  the  control  of  human 
foresight  sometimes  requires  the  special  interposition  of 
rightful  power,  to  aid  the  best  general  system  in  working 
harmoniously  to  the  attainmetit  of  the  most  truthful  result. 
In  England,  from  wdience  we  derive  our  common  law, 
many  reasons,  in  view  of  the  governmental  organization 
there,  exist  for  establishing  a  general  system  on  this  sub- 
ject, and  determining  its  operation  differently  from  that 
which  necessarily  must  prevail  here.  Such  is  the  law  of 
descent  of  estates,  primogeniture,  &c.,  that  their  distinc- 
tive and  controlling  power  operate  directly  upon  the  rela- 
tion of  parent  and  child.  These  distinctions  do  not  exist 
in  this  country.  The  domestic  or  private  relations  there- 
fore are  to  be  so  far  held  independent  of  them.  In  this 
country  there  is  no  legalized  classification  of  the  citizens, 
establishing  castes  in  society.  We  have,  and  can  have,  no 
such  thing,  under  the  constitution  of  our  country,  as  a 
legalized  nobility,  possessing  privileges  by  law  peculiar  to 
themselves  as  citizens,  and  a  common  people  whose  con- 
dition is  distinctly  fixed  by  restraining  laws.  The  pecu- 
liar institution  of  England,  in  this  respect,  must  neces- 
sarily have  operated  with  controlling  effect  in  shaping  the 
common  law  there.  Nevertheless,  from  what  we  have 
already  said,  it  is  seen  that  even  there,  in  the  absence  of 
special  statutory  provision,  a  marriage  after  the  age  of 
consent  is  held  valid.  The  minor  child,  taken,  by  the 
obligations  of  the  new  relation  established  by  the  solem- 
nization of  the  marriage  contract,  from  the  control  of  the 
parent  or  natural  guardian,  is  held  to  be  amenable  to  the 
law  of  the  land  go\  erniug  husband  and  wife.  This  being 
the  case  under  the  common  law,  it  is  clear  that  rights 
belonging  to  the  parent  must  be  interfered  with  by  the 
observance  of  the  duties  of  llie  nuirital  relation;  so  that 


336  SUPREME  COURT  CASES, 

Goodwin  V.  Thompson. 

we  see  the  incompatibility  of  both  these  relations  existing 
at  the  same  time  without  interception  as  to  the  same  per- 
son, in  respect  of  his  claims  and  obligations.  The  wife 
cannot  be  held  to  "  serve  two  masters,"  therefore  the  right 
of  the  husband  must  j^revail. 

By  the  common  law,  then,  there  is  no  difference  be- 
tween the  case  of  a  minor  twelve  years  old  and  one 
twenty  years  old,  in  effect  as  to  the  consequences  of  the 
contract. 

This  being  the  common  law,  it  can  only  be  changed  by 
statutory  provision  such  as  was  resorted  to  there.  By  the 
statute  26  George  II.,  ch.  33,  it  was  enacted,  "That  all 
marriages  celebrated  by  license,  where  either  of  the  parties 
is  under  twenty-one,  without  the  consent  of  the  father,  or 
if  he  be  not  living,  of  the  mother  or  guardian,  shall  be 
absolutely  void."  This  superseded  the  common  law,  but 
we  have  no  such  statute.  The  effect  of  this  statute  is  dis- 
cussed by  Sir  William  Blackstone;  among  other  things 
he  says,  '•'•  Much  maybe  said,  and  has  been  said,  both  for 
and  against  this  innovation  upon  our  ancient  laws  and 
constitution.  On  the  one  hand,  it  prevents  the  clandes- 
tine marriages  of  minors,  which  are  often  a  terrible  incon- 
venience to  thoss  private  families  wherever  they  happen. 
On  the  other  hand,  restraints  upon  marriages,  especially 
among  the  lower  class,  are  evidently  detrimental  to  the 
public  by  hindering  the  increase  of  the  people;  and  to 
religion  and  moralitv,  bv  encouraging  licentiousness  and 
debauchery  among  the  single  of  both  sexes,  and  thereby 
destroying  one  end  of  society  and  government." 

In  this  country  the  law  of  itself  recognizes  no  higher  and 
lower  class.  Its  effect  is  intended  to  be  uniform  without 
respect  to  persons. 

If  an  action  will  lie  on  behalf  of  the  parent  for  the  pro- 
curement of  the  marriage  of  his  daughter  without  doing 
violence  to  her  rights,  she  being  a  minor,  whether  she  be 
of  the  age  of  thirteen  years  or  twenty,  what  would  be 
the  consequence  ?  Two-thirds,  perhaps  more,  of  the  fe- 
males of  our  land  have  been,  and  most  likely  will  be. 


DUBUQUE,  JULY,  1849.  337 

Goodwin  v.  Thompson. 

married  before  they  arrive  at  the  age  of  twenty-one  years. 
Litigation  for  speculation  might  be  resorted  to;  and  a 
strong  motive  would  be  furnished  to  the  parent  to  with- 
liold  his  consent.  Long  and  well  established  usage  pro- 
motive of  the  best  interests  of  society  would  be  disturbed 
by  restraining  marriage  ;  and  the  public  interests  would 
be  materially  injured,  morally  and  politically.  In  this 
case  it  is  not  pretended  that  the  daughter  of  the  plaintiff 
was  imposed  upon  by  her  husband  or  the  defendants 
below ;  that  any  force  or  fraud  was  used  or  practised  by 
him  or  them  upon  her ;  or  that  anything  was  done,  mala 
Jlde^  of  which  she  or  the  plaintiff  complains  ;  but  on  the 
contrary,  that  the  parties  were  married,  in  good  faith, 
with  her  full  consent.  In  this,  the  case  at  bar  is  distin- 
guished by  plain  marks  from  the  case  in  Hill  v.  Holbart, 
2  Root,  page  48.  In  that  case  a  gross  fraud  was  practised 
upon  the  daughter ;  she  was  seduced,  and  afterwards 
deceived  into  a  marriage  with  a  vagrant,  who  was  hired  to 
practise  the  imposition,  in  the  garb  of  respectability,  in 
order  to  prevent  a  cause  of  action  at  law.  She  was  made 
the  victim  of  outrage.  There  is  no  such  allegation  here. 
This  case  stands  upon  the  complaint  of  the  parent,  on  the 
ground  of  the  loss  of  service.  The  books  are,  so  far  as  we 
have  been  able  to  find  them,  barren  of  cases  like  this. 
Public  opinion,  as  well  as  policy,  co-operating  with  private 
interest  and  convenience,  by  long  usage  seems  to  have 
established  the  right  of  the  husband  to  the  society  and 
service  of  the  wife,  though  she  be  a  minor,  to  the  exclu- 
sion of  that  of  the  parent  after  marriage.  Indeed,  a  nat- 
ural sense  of  justice,  in  the  exercise  of  a  mind  uninfluenced 
by  passion  or  caprice,  would  dictate  the  acquiescence 
of  the  parent,  in  the  legitimate  results  of  this  contract, 
when  legally  consummated ;  in  which  the  dearest  interests 
of  his  offspring  are  involved.  We  hold  that  parents 
should  maintain  and  exercise  a  controlling-,  advising: 
influence  over  their  children,  and  such  is  their  right  in  the 
forming  of  matrimonial  alliance  ;  and  that  it  is  the  duty 
of  the  child  to  abide  by  their  counsel  and  requii-ement. 


338  SUPREME  COURT  CASES, 

Shaw  V.  Livermore. 

But  to  render  liable  any  or  all  persons  who  miglit,  in  the 
spirit  of  kindness,  actuated  by  pure  motives,  be  present  at 
the  marriage  ceremony,  or  afford  countenance  to  the  child 
on  an  occasion  of  so  much  interest,  would  be  in  violation 
of  right,  propriety,  and  public  interest.  Upon  a  full  con- 
sideration of  the  case,  in  view  of  the  public  and  private 
interests  and  rights  involved  in  the  question  presented, 
we  are  of  the  opinion,  in  the  absence  of  fraud,  imposition, 
or  violence,  affecting  the  rights  of  the  child  and  thereby 
affecting  the  relative  rights  and  duties  of  parents,  that  this 
action  cannot  be  maintained,  and  that  the  court  erred  in 
overruling  the  demurrer. 

Judgment  reversed, 

P.  Smith,  for  plaintiffs  in  error. 

L,  A,  Thomas^  for  defendant. 


SHAW  V.  LIVERMORE  et  al 

Where  S.  agreed  to  deed  a  lot  to  L.,  upon  condition  that  he  would  make  cer- 
tain improvements  and  live  upon  the  lot,  it  was  held  that  if  L.  performed 
the  substantial  conditions  with  ordinary  diligence,  he  was  entitled  to  a 
specific  performance. 

Equity  will  extend  relief,  even  if  there  has  not  been  a  strict  legal  compliance 

■■  with  the  terms  of  the  contract,  if  it  can  be  done  consistently  with  the 
essence  of  the  agreement. 

Where  one  of  the  conditions  upon  which  a  deed  should  be  made  was,  that 
the  purchaser  sheuld  reside  upon  the  lot,  but  the  term  of  such  residence 
was  not  designated,  it  was  held  that  as  the  purchaser  had  complied  with 
all  the  other  conditions  to  secure  title,  and  had  resided  upon  the  lot  nearly 
two  years  before  he  left  it,  that  such  leaving  would  not  be  an  abandon- 
ment, and  that  he  was  entitled  to  a  deed. 

The  recision  or  specific  performance  of  a  contract  is  left  to  the  sound  dis- 
cretion of  the  chancellor,  to  be  exercised  upon  a  consideration  of  the  cir- 
cumstances of  each  case,  under  applicable  general  rules  of  equity. 

Evidence  will  not  be  considered  which  is  not  responsive  to  the  bill  or  answer. 


DUBUQUE,  JULY,  1849.  339 


Shaw  V.  Livermore. 


In  Equity.    Appeal  from  Jackson  District  Court. 

Opinion  hy  Greene,  J.  The  bill  in  this  case  was  filed 
by  John  Shaw  against  Allen  Dutton  and  Zalman  Liver- 
more  for  a  specific  performance.  In  substance  it  avers, 
that  in  May,  1845,  Shaw  contracted  to  sell  Dutton  a  cer- 
tain one  acre  lot  of  land,  in  the  town  of  Springfield,  in 
Jackson  county,  upon  the  condition  that  Dutton  should 
build  a  line  fence  between  said  lot  and  the  adjoining  land, 
belonging  to  said  Shaw,  on  the  east  and  south  sides  of 
said  lot,  and  pay  the  sum  of  $1.25,  and  that  so  soon  as 
Dutton  should  build  said  fence  and  pay  said  sum  of 
money,  Shaw  was  to  make  him  a  deed  in  fee  simple  to 
said  lot.  The  bill  further  alleges,  that  in  pursuance  of 
the  agreement  Dutton  entered  uj)on  the  premises,  erected 
a  dwelling  house  thereon,  and  made  other  improvements 
under  the  observation  and  notice  of  said  Shaw,  and  with- 
out any  objection  from  him;  that  in  the  spring  of  1847, 
Dutton  made  the  fence,  tendered  the  money,  and  demanded 
a  deed,  Avhich  was  refused  ;  that  Shaw  intended  to  cheat 
and  defraud  Dutton  ;  and  that  Dutton  sold  the  premises 
to  Livermore  in  April,  1847.  The  bill  concludes  with  a 
prayer  for  a  deed  in  accordance  with  the  contract,  and  for 
general  relief. 

The  answer  admits  that  there  was  a  contract  for  the 
land  designated ;  but  denies  that  the  terms  of  the  contract 
were  such  as  are  set  forth  in  the  bill.  It  states  that  Dut- 
ton, who  represented  himself  to  be  a  good  house  carpenter 
and  cabinetmaker,  agreed  to  settle  upon  the  land,  build 
a  good  house  thereon,  and  also  build  a  good  board  fence, 
five  and  a  half  feet  high,  on  the  east  and  south  sides  of  the 
premises,  and  carry  on  his  trade  ;  and  that,  upon  the  per- 
formance of  those  conditions,  the  respondent  was  to  give 
and  grant  the  lot  of  land  in  question.  But  the  answer 
absolutely  denies  that  the  complainant  ever  complied  with 
those  conditions,  and  charges  that  he  did  not  carry  on  his 
trade  upon  the  premises,  and  that  he  declared  his  inten- 


340  SUPREME  COURT  CASES, 

Shaw  V.  Li  verm  ore. 

tion  to  abandon,  and  did  abandon  the  premises,  and  that 
he  stated  on  divers  occasions  to  the  respondent  that  he  did 
not  expect  him  to  give  a  deed  for  the  land,  as  he  had  not 
fulfilled  the  contract.  Respondent  then  admits  that  com- 
plainant entered  upon  the  lot,  and  charges  that  during  the 
time  he  remained  there  complainant  re23eatedly  promised 
respondent  that  he  Avould  comply  with  the  contract,  and 
respondent  was  induced  to  believe  that  he  would  do  so 
until  he  abandoned  the  premises  ;  admits  that  some  fence 
was  made  in  the  spring  of  1847,  but  denies  that  it  was 
such  a  fence  as  the  contract  required ;  admits  that  Shaw 
sold  premises  to  Livermore,  and  that  a  deed  was  demanded 
and  refused,  because  the  contract  had  not  been  com- 
plied with  on  the  part  of  respondent ;  and  the  answer 
denies  all  fraud,  and  the  right  of  complainant  to  relief  in 
equity. 

The  complainant  filed  a  general  replication. 

Depositions  were  taken  by  which  it  is  proved  by  one 
witness,  that  Shaw  admitted  the  sale  of  the  lot  to  Dutton 
for  the  sum  of  $1.25,  and  upon  condition  that  he  would 
build  a  house  on  the  lot;  that  in  the  summer  of  1845 
Dutton  built  the  house  upon  the  lot,  and  moved  into  it ; 
and  that  there  was  a  board  fence  built  on  the  east  and 
south  sides  of  the  lot.  Another  witness  testified  that 
Shaw  told  him  that  he  had  done  more  than  any  other  man 
in  getting  people  to  settle  at  Springfield,  that  he  had 
given  Dutton  an  acre  lot,  and  on  being  told  that  he  got 
pay  for  it,  replied  that  he  only  received  government  price 
for  the  land.  The  same  witness  swore  that  Dutton  built 
a  house  upon  the  lot,  and  lived  in  it  until  May,  1847; 
that  Dutton,  on  two  occasions,  tendered  $1.25  to  Shaw, 
and  demanded  a  deed,  which  was  refused,  and  that  the 
fence  was  finished  around  the  lot  before  the  final  tender 
and  demand.  Other  witnesses  testified  in  substance  to 
the  same  effect. 

Depositions  were  also  introduced  in  behalf  of  respondent 
in  support  of  averments  contained  in  his  answer ;  but 
the  testimony  is  not  sufficient,  we  think,  to  contravert  the 


DUBUQUE,  JULY,  1849.  341 


Shaw  V.  Livermore. 


material  allegations  in  tlie  bill,  as  sustained  by  preponder- 
ating evidence. 

The  court  referred  the  case  to  P.  B.  Bradley,  Esq.,  as 
a  master  to  assess  the  value  of  the  improvements  upon  the 
premises,  who  accordingly  returned  the  value,  under  the 
estimate  of  witnesses,  at  $100.4. 

Upon  a  full  hearing,  the  court  granted  the  prayer  of 
the  petition,  and  decreed  a  conveyance  of  the  premises 
to  the  comphiiuants,  with  a  priviso  that  tlie  decree  should 
be  void  if  Shaw  paid  complainants  §100  within  twenty 
days. 

To  this  decree  several  objections  are  urged,  to  which  we 
will  briefly  advert. 

1.  It  is  urged  that  complainants  are  not  entitled  to  a 
specific  performance,  because  Dutton  had  not  performed 
his  part  of  the  agreement.  But  we  think  tliis  objection 
is  not  maintained  by  the  facts  as  they  appear  in  the 
bill,  answer  and  depositions.  They  disclose  no  serious 
default  on  the  part  of  Dutton.  He  appears  to  have 
acted  in  good  faitli,  and  to  have  taken  all  necessary 
steps  towards  a  substantial  compliance  with  the  terms  of 
the  agreement.  He  appears  to  have  built  a  house  and 
the  fence  upon  the  lot  as  stipulated ;  to  have  tendered 
the  money  and  demanded  a  deed,  and  to  have  resided 
upon  the  premises  as  a  carpenter  and  joiner  for  nearly 
two  years  before  he  sold  his  interest  to  Livermore,  and 
it  is  not  pretended  that  these  things  were  not  done 
within  a  reasonable  time.  At  least,  the  important  con- 
ditions, which  would  entitle  him  to  a  deed  from  Shaw, 
appear  to  have  been  performed  with  ordinary  diligence. 
If  the  facts  in  this  case  bad  indicated  gross  laches,  or 
inexcusable  negligence  in  performing  the  conditions  of 
the  contract  on  the  part  of  the  complainant ;  or  if,  after 
the  inception  of  the  agi-eement,  and  the  refusal  of  the 
respondent  to  execute  the  deed,  those  facts  had  shown 
a  material  charge  affecting  the  rights  and  obligations  of 
trie  parties ;  the  broad,  equitable  and  just  rules  of  chan- 
cery jurisprudence  would  be  violated  by  enforcing  a  spe- 


342  SUPREME  COURT  CASES, 

Shaw  V.  Livermore. 

cific  performance  of  the  contract.  But,  on  the  other  hand, 
this  court  will  extend  relief  to  the  party  who  seeks  it, 
even  if  there  has  not  been  a  strict  legal  compliance  with 
the  terms  of  the  contract,  where  such  non-comi)liance  does 
not  affect  the  essence  of  the  agreement,  does  no  violence 
to  the  manifest  intention  of  the  parties,  nor  shows  gross 
negligence  in  the  complainant.  2  Storj-'s  Eq.  Jr.,  §  §  771, 
776,  777;   Taylor  v.  Longworth^  14  Peters,  172,  175. 

2.  The  next  objection  urged  is,  that  the  object  of  the 
agreement  was  lost  to  the  respondent  by  the  complainant's 
abandonment  of  the  premises.  If  they  had  been  aban- 
doned by  complainant  before  he  had  sufficiently  performed 
the  conditions  of  the  contract  to  entitle  him  to  a  deed 
from  respondent,  this  objection  would  have  been  tenable. 
But,  as  we  understand  the  case  from  the  evidence  before 
us,  the  leading  conditions  upon  which  Shaw  agreed  to 
convey  the  lot  to  Dutton  were:  1.  The  erection  of  the 
division  fence  ;  2.  Of  a  house  on  the  lot ;  3.  The  pay- 
ment of  $1.25;  and  4.  As  an  incident  to  those  leading 
conditions,  Shaw  appears  to  have  attached  much  import- 
ance to  Button's  living  upon  the  premises  as  a  mechanic, 
for  the  convenience  and  benefit  of  the  town  of  Spring- 
field. But,  in  relation  to  this  fourth  stipulation  so  much 
relied  upon  by  respondent,  the  case  does  not  show  any 
definite  agreement  between  the  parties.  We  cannot, 
therefore,  regard  it  as  an  essential  element  of  the  con- 
tract. Besides,  if  it  should  be  deemed  essential,  it  can- 
not amount  to  a  valid  objection  to  a  specific  performance, 
because  there  was  no  portion  of  time  designated  for  the 
occupancy  of  those  premises  by  Dutton  as  a  mechanic, 
before  he  should  receive  a  deed  for  them ;  and  in  giving 
a  construction  to  this  doubtful  branch  of  the  contract,  we 
think  it  reasonable  to  assume  that,  as  Dutton  had  occupied 
the  premises  nearly  two  years  before  selling  his  interest  in 
the  property,  and  delivering  his  possession  to  Livermore, 
and  as  he  had  mainly  performed  the  more  important  con- 
ditions of  the  purchase  from  Shaw,  he  brought  himself 
within   the   vale   of  equitable   relief.      We   can   observe 


DUBUQUE,  JULY,  1849.  343 


Shaw  V.  Livermore. 


nothing  in  tlie  transaction  to  support  the  position  that, 
as  a  condition  precedent  to  complainant's  riglit  to  a  deed, 
he  should  have  continued  in  actual  possession  of  the  lot, 
and  in  his  mechanical  occupation,  during  a  still  longer 
probationary  term. 

3.  It  is  proposed  that  unless  complainant  has  made  out 
a  clear  and  conscientious  case,  a  court  of  chancery  should, 
in  the  exercise  of  a  sound  discretionary  power,  leave  the 
party  to  his  action  at  law  for  damages.  It  is  true  in 
equity,  that  the  determination  of  all  cases  respecting  the 
recision  and  specific  performance  of  contracts  is  a 'matter 
of  discretion  in  the  com-t,  and  not  of  right  in  the  party ; 
and  in  the  exercise  of  that  discretion  upon  a  sound,  rea- 
sonable and  unbiased  consideration  of  the  peculiar  cir- 
cumstances connected  with  each  case,  a  court  should  call 
in  the  aid  of  general  rules  and  principles  of  equity  juris- 
ju'udence,  so  far  as  their  application  may  be  apparent. 
Thus  guided  in  the  exercise  of  that  discretionary  power, 
we  think  the  circumstances  of  this  case,  together  with  the 
certain,  fair  and  just  objects  of  the  agreement,  show  that 
the  decree  of  the  court  below  is  reasonable  and  proper. 

4.  But  another  objection,  to  which  it  may  be  well  to 
advert,  is,  that  the  complainant  discharged  respondent  of 
his  contract.  This  position  is  assumed  from  a  portion  of 
the  evidence.  But  as  that  evidence  is  not  responsive 
either  to  the  bill  or  answer,  and  is  not  only  impertinent, 
but  vagu»  and  unreliable,  we  conclude  that  this  objection 
is  also  without  foundation. 

Decree  affirmed. 

L,  Clark  and  F.  A,  CAenotveth,  for  appellant. 
P.  Smithf  for  appellee- 


344  SUPREME  COURT  CASES, 


Gaveny  v.  Hinton. 


GAVEN-Y  V.  HINTON. 

Where  a  grantor  reserves  a  house,  rails,  &c.,  which  were  on  a  strip  ten  rods 
wide  and  one.  hundred  and  sixty  rods  long,  on  the  west  side  of  the  quar- 
ter section  of  land  sold,  but  the  house,  &c.,  were  afterwards  found  to  be  a 
short  distance  east  of  tlie  ten  rod  strip,  it  was  held  that  the  grantor  was 
entitled  to  the  house. 

Course  and  distance  should  yield  to  natural  and  artificial  objects  which  are 
made  part  of  the  description  of  land. 

In  construing  contracts,  that  which  is  most  material  and  certain,  and  most 
conformable  to  the  intention  of  the  parties,  should  prevail. 

Error  to  Jackson  District  Court. 

Opinion  by  Williams,  C.  J.  This  cause  was  tried  at 
the  May  term,  1849,  of  the  Jackson  county  district  court. 
The  plaintiff,  Hinton,  sued  Gaveny,  in  tresj^ass,  for 
"  throwing  down  and  hauling  awa}'"  a  certain  building, 
on  the  west  side  of  Hinton's  land,  and  claimed  for  his 
damages  $75.  He  obtained  a  verdict  and  judgment  for 
$25.  The  record  shows  that  Hinton,  the  plaintiff,  had 
entered,  at  the  land  office  at  Dubuque,  the  south-east 
quarter  of  section  17,  township  85,  range  4,  east  of  the 
fifth  principal  meridian.  The  entry  was  made  in  Feb- 
ruary, 1849.  Afterwards,  on  or  about  the  1st  day  of 
April,  of  the  same  year,  Gaveny  took  down  and  car- 
ried away  the  house  which  stood  on  the  land.»  This  is 
the  tresi3ass  of  which  the  plaintiff  complains. 

It  appears,  also,  that  Gaveny  had  taken  and  occupied 
the  land,  as  his  claim,  previous  to  the  time  of  Hinton's 
entry.  He  had  made  improvements  on  it  by  building 
the  house  in  question,  fencing,  planting  fruit  trees,  &c. 
Hinton,  to  adjust  the  matter  between  him  and  Gaveny. 
became  the  pmxhaser  of  his  claim  to  the  land.  There- 
upon Gaveny  made  him  a  release,  or  a  quit  claim  deed, 
which  is  in  the  following  terms,  viz. :  "  Know  all  men  by 
these  presents,  that  I,  John  Gaveny,  of  the  county  of 
Jackson  and  state  of  Iowa,  in  consideration  of  the  sum  of 


DUBUQUE,  JULY,  1849.  345 

Gaveny  v.  Hiiiton. 

$25,  to  me  in  hand,  paid  by  Silas  Hinton,  of  the 
county  and  state  aforesaid,  have  this  day  bargained,  sold, 
released  and  relinquished  all  my  right,  title,  interest  and 
claim  in  and  to  the  south-east  quarter  of  section  17, 
township  85,  range  4,  east  of  the  fifth  principal  meri- 
dian, to  have  and  to  hold,  to  him  the  said  Hinton  for 
ever  ;  except  the  log  house,  stable  and  corn  crib,  and 
hen  house,  and  rail  fencing  and  apple  trees  that  are  stand- 
ing on  the  west  side  of  said  quarter  section,  being  a  piece  of 
ground  ten  rods  wide  and  one  hundred  and  sixty  rods  long, 
on  the  west  side  of  said  quarter ;  which  buildings  and  im-  ■ 
jDrovements  I  have  the  right  to  remove  from  the  land 
hereby  bargained,  sold  and  released,  on  or  before  the  1st 
day  of  December  next.  But  the  said  Hinton  shall  have 
the  right  to  occupy  the  said  land,  to  cultivate  and  im- 
prove as  much  as  the  said  Hinton  may  think  proper. 
Said  house  is  not  to  be  occupied  by  any  person  while  it 
remains  where  it  is,  after  the  1st  of  March  next;  and  if 
the  ten  acres  of  land  hereby  sold  shall  take  any  of  the 
wheat  that  was  put  in  by  Thomas  Young,  the  said  Young 
shall  have  the  right  to  take  said  wheat  away ;  and  I  do 
hereby  agree,  and  authorize  the  said  Hinton  to  enter  the 
land  aforesaid  at  the  land  office  in  Dubuque."  The  con- 
tract bears  date  February  14,  1849. 

Exception  was  taken  to  the  charge  of  the  court  below, 
as  given  to  the  jury,  affecting  the  contract  between  the 
j)arties  in  relation  to  the  house,  which  is  the  subject  of 
the  alleged  trespass.  For  a  defence  to  the  plaintiff's 
action  the  defendant  Gaveny  set  up,  by  plea,  his  right  to 
the  removal  and  ownership  of  the  house,  on  the  ground 
that  it  had  been  expressly  reserved  ffom  sale  by  the  con- 
tract between  him  and  Hinton.  He  relied  on  the  written 
contract  to  show  the  intention  of  the  parties  in  relation 
to  the  house.  Hinton,  the  plaintiff,  replied  to  this  alle- 
gation of  the  defendant,  that  the  house  was  not  within 
the  strip  of  land  described,  by  limits,  as  to  extent,  in  the 
agreement,  to  wit :  "  standing  on  the  west  side  of  said 
quarter,  being  a  strip  or  piece  of  ground  ten  rods  wide 
Vol.  II.  23 


346  SUPREME  COURT  CASES. 


Gaveny  v.  Hinton. 


and  one  hundred  and  sixty  rods  long,  on  the  west  side  of 
said  quarter."  It  appeared  fi'om  the  evidence  that  some 
time  after  the  contract  had  been  made,  it  was  ascertained 
that  the  house  in  question  was  not  within  the  area  of  land 
described  as  "  ten  rods  wide  and  one  hundred  and  sixty 
long  ;  "  but  that  it  stood  a  short  distance  outside  of  it. 

The  error  assigned,  upon  which  the  reversal  of  the  judg- 
ment of  the  district  court  is  urged,  is  founded  on  the 
instruction  given  to  the  jury.  The  judge  charged  the  jury 
as  follows,  viz  : 

"  The  question  is  one  j^urely  depending  upon  the  con- 
tract between  the  parties,  and  there  are  no  equities  which 
would  authorize  the  court  or  jury  to  lean  to  either  side. 
If  the  contract  was  fully  understood  and  read  by  the  par- 
ties before  being  executed,  and  either  one  has  a  technical 
advantage  over  the  other,  they  must  abide  by  it,  and  take 
the  consequences  thereof." 

After  stating  the  agreement  of  the  parties,  he  jDroceeds 
to  say :  "  The  construction  of  this  contract  is  not  ambigu- 
ous, and  is  a  matter  of  law.  I  think  that  no  other  house 
was  reserved  by  the  contract  to  Gaveny,  except  such  a 
house  as  was,  or  might  be  included  in  a  strip  on  the  west 
side  of  the  quarter,  ten  rods  wide  and  one  hundred  and 
sixty  rods  deep,  and  if  the  house  in  dispute  lay  east  of 
this  strip  which  would  be  made  by  ten  rods  wide  and  one 
hundred  and  sixty  rods  deep,  the  plaintiff  is  entitled  to 
recover,  if  it  was  removed  by  the  defendant,  and  that  the 
measure  of  damages  is  the  value  of  the  house  where  it 
stood." 

The  question  involved  here  depends  for  solution  upon 
the  intention  of  the  parties  to  the  contract,  as  expressed 
therein.  It  is  clear  that  at  the  time  the  house  was  removed 
by  Gaveny,  Hinton  was  the  owner  of  the  land  in  fee 
simple.  Without  his  consent  it  could  not  be  taken  away, 
legally.  Did  he  give  that  consent  ?  A  fair  examination 
of  the  contract  will,  we  think,  answer  the  quesiion  in  the 
affirmative.  Gaveny,  for  a  money  consideration,  sold  to 
Hinton  his  right,  title  and  claim  to  tlie  laud,  reserving 


DUBUQUE,  JULY,  1849.  347 

Gaveny  v.  Hinton. 

the  house,  &c.,  described  as  being-  on  a  strip  or  piece  of  the 
land  sold,  on  the  west  side  of  the  quarter  so  sold,  ten  rods 
wide  and  one  hundred  and  sixty  rods  long.  The  house, 
fence,  &c.,  were  excepted  or  reserved  to  Gaveny,  describ- 
ing the  land  upon  which  it  was  supposed  they  stood.  It 
must  be  presumed  from  the  language  of  the  contract  con- 
cerning the  reservation  of  the  house,  that  the  parties  in 
treating  of  it  considered,  and  had  an  understanding  at  the 
time,  that  the  area  of  land  "  ten  rods  wide  and  one  hun- 
dred and  sixty  rods  long  on  the  west  side  of  the  quarter  " 
would  include  the  house,  fence,  &c.,  which  were  excepted 
and  reserved  from  sale.  The  reservation  of  the  house, 
&c.,  together  with  the  money  paid  by  Hinton,  formed  the 
consideration  for  which  Gaveny  parted  with  his  claim  to 
the  land,  and  suffered  him  (Hinton)  to  take  the  land  by 
entry  at  the  Dubuque  land  office.  The  area  of  land  as 
limited,  bounded  and  defined  by  lines,  is  nothing  more 
than  a  description  of  the  ground  on  which  the  house,  &c., 
were  supposed  to  stand.  There  is  no  allegation  that  there 
was  any  other  house  on  the  land.  Hinton,  having  ac- 
cepted and  availed  himself  of  the  interest  and  claim  of 
Gaveny,  under  the  contract,  was  bound  to  do  so,  subject  to 
the  terms  thereof  as  to  the  reservation.  The  considera- 
tion upon  which  the  house  was  reserved  for  the  use  and 
benefits  of  Gaveny  was  good  ai.d  valid  in  law.  As  a 
legitimate  incident  to  the  contract,  Gaveny  had  a  right  to 
remove  it  and  appropriate  it  to  his  use.  This  is  not  a 
question  of  boundary  and  definite  admeasurement  of  land, 
involving,  as  the  subject  matter  of  controversy,  the  quan- 
tity or  number  of  acres  contracted  for  in  the  sale.  If  this 
were  the  question,  then  it  would  be  necessary  fully  to 
examine  the  law  of  description,  and  monumental  land- 
marks, for  aiiplication  to  this  case.  But,  even  then,  the 
law  is  well  settled,  that  com-se  and  distance  must  yield  to 
natural  and  artificial  objects  which  are  made  part  of  the 
description  ;  they  being  susceptible  of  direct  ascertain- 
ment as  monuments  designative  of  the  intention  of  the 
parties  to  tlie  contract. 


348  SUPREME  COURT  CASES, 

Gaveny  v.  Hinton. 

In  sucli  case,  course  must  be  varied  and  distance  short- 
ened, sx)  as  to  conform  to  natural  or  artificial  objects  wliicb 
can  be  clearly  ascertained,  as  set  forth  in  the  grant  under 
the  contract.  Such  monuments  or  landmarks,  as  a  river, 
spring,  stream,  house  or  marked  tree,  are  generally- 
familiar  to  the  contracting  parties,  so  as  to  be  made 
demonstrative  of  their  intention.  The  case  of  Jackson  v. 
Moore^  6  Cow.,  717,  presents  much  and  able  discussion  on 
this  question. 

Among  other  things  there  recognized  as  cardinal  in  doc- 
trine, as  of  the  construction  of  deeds,  the  judge  says,  "  In 
construing  deeds,  effect  is  to  be  given  to  ever}'-  part  of  the 
description,  if  practicable ;  but  if  the  thing  intended  to  be 
granted  appears  clearly  and  satisfactorily  from  any  part 
of  the  description,  and  other  circumstances  of  description 
are  mentioned  which  are  not  applicable  to  that  thing,  the 
grant  will  not  be  defeated ;  but  those  circumstances  will 
be  rejected  as  false  or  mistaken."  Jackson  v.  Clark,  7 
John.,  217;  Jackson  v.  Loomis,  18  ib.,  81 ;  4  Mass.,  146;  5 
East.,  41.  The  principle  established  by  this  decision,  we 
think,  is  essential  to  a  fair  and  just  construction  of  the  con- 
tract. The  house  is  the  substantive  matter  of  the  contract, 
so  much  so  that  as  such  it  is  designated,  and  reserved  in 
the  most  positive  manner  as  the  property  of  Gaveny.  If 
it  had  been  named  in  the  contract  as  descriptive  of  the 
boundary  of  land,  as  a  monument  for  the  ascertainment  of 
quantity,  or  limit,  it  would  have  operated  so  as  to  control 
and  establish  course  and  distance ;  certainly  then,  when  it 
is  made  a  substantive  matter,  of  the  value  and  considera- 
tion of  the  contract,  misapprehension  or  mistake  as  to 
course  and  distance  should  not  control  and  destroy  a  right 
BO  manifest.  It  is  urged  on  the  part  of  Hinton,  that,  *'in 
construing  the  contract,  the  intention  of  both  parties  must 
be  taken  into  consideration  by  the  court ;  that  it  is  not  the 
only  question  whether  Gaveny  thought  he  was  getting  the 
house  ;  but  that  it  is  equally  a  question  whether  Hinton 
thought  so,  and  that  the  conclusion  must  be  derived  from 
the  terms  of  the  agreement  itself."     This  is  all  true.     The 


DUBUQUE,  JULY,  1849.  349 

Gaveny  v.  Hiiiton. 

ag-reemeiit  of  tlie  parties  by  its  terms  exjDressly  reserves 
the  house  for  Gaveny.  By  all  that  is  fair  in  construction 
we  must  believe  that  Hinton,  as  well  as  Gaveny,  con- 
sidered and  knew  that  the  house  was  to  be  the  property  of 
Gaveny,  or  it  would  not  have  been  so  expressly  stated  in 
the  contract.  When  such  is  the  contract,  if  Hinton  knew, 
or  thought  that  the  house  would  be  found  by  the  course 
and  distance  of  the  lines  described,  to  stand  outside  of 
the  area  of  ten  acres,  lie  should  have  been  careful  to  have 
his  agreement  made  with  a  proi)er  reference  to  such  a 
state  of  the  case.  He  cannot  be  allowed  to  make  void  or 
defeat  the  right  expressly  given  by  his  contract,  by  an 
argument  based  on  this  position.  The  execution  of  the 
contract,  and  acceptance  of  the  rights  and  benefits  aris- 
ing from  it,  binds  him  to  the  observance  of  the  rights 
of  Gaveny,  in  compliance  with  its  terms,  as  expressed 
therein. 

In  construing  contracts,  that  which  is  most  material 
and  most  certain  in  description  shall  prevail  over  that 
which  is  less  material  and  certain.  1  Cowen,  612;  5  id.^ 
371;  6  Wheat.,  582;  7  ib.,  10. 

This  being  the  rule,  and  the  intention  of  the  parties 
being  manifest  in  relation  to  the  subject  matter  in  con- 
troversy, there  is  error  in  the  instruction  of  the  court,  by 
which  the  description  of  the  area  of  laud,  by  com'se  and 
distance,  is  made  to  exclude  the  house  from  the  effect  of 
the  contract;  and  by  virtue  of  which  the  plaintiff  re- 
covered in  the  judgment  of  the  court  below. 

Judgment  reversed. 

P.  Smith,  for  plaintiff  in  error. 

L.  Clark,  for  defendant. 


350  SUPREME  COURT  CASES, 


Taylor  v.  Barber. 


TAYLOR  V.  BARBER. 

In  an  appeal  to  the  district  court,  where  the  appellant  is  in  default,  the 

judgment  of  the  justice  may  be  aftirmed. 
By  going  to  trial  on  the  merits  without  exception  to  the  cause  of  action,  any 

defect  in  that  particular  would  be  considered  as  waived  by  the  defendant. 
A  verbal  statement  of  plaintiff's  demand  before  a  justice,  entered  upon  his 

docket,  and  indorsed  upon  the  writ,  is  all  that  is  required  by  the  statute 

of  1844. 
Mere  irregularity  and  deficiency  of  form  in  proceedings  before  justices  should 

be  regarded  with  liberality. 

Ekroe,  to  Dubuque  District  Court. 

Opinion  by  Greene,  J.  Barber  sued  Taylor  before  a 
justice  of  the  peace.  It  appears  by  tlie  transcript  of  the 
record  that  the  plaintiff  filed  his  affidavit  according  to 
law,  averring  an  indebtedness  to  him  from  the  defendant 
of  $100;  a  writ  of  attachment  was  issued;  the  parties 
appeared;  witnesses  were  examined,  and  a  trial  had,  upon 
which  the  plaintiff  recovered  a  judgment  for  the  sum  of 
$87.20  debt  and  interest.  Thereupon  the  defendant  took 
an  appeal  to  the  district  court,  and  failing  to  appear  there, 
judgment  was  rendered  against  him  by  default  for  the 
same  amount,  and  in  affirmance  of  the  judgment  rendered 
by  the  justice. 

The  errors  assigned  and  urged  to  these  proceedings 
may  be  considered  under  two  heads. 

1 .  It  is  contended  that  as  the  record  does  not  show  the 
action  to  have  been  brought  on  a  note  or  a  written  instru- 
ment, judgment  by  default  could  only  have  been  rendered 
upon  the  verdict  of  a  jury.  In  support  of  this  position, 
the  thirteenth  section  of  the  practice  act.  Rev.  Stat.,  471, 
is  cited.  This  section  authorizes  the  court  to  direct  the 
clerk  to  assess  damages  when  judgment  is  given  by  de- 
fault on  any  instrument  of  writing  ;  but  provides  that  in 
all  other  actions,  wlien  judgment  shall  go  by  default,  the 
plaintiff  may  have  his  damages  assessed  by  a  jury.  The 
regulations  of  this  section  we  regard  as  applying  particu- 


DUBUQUE,  JULY,  1849.  351 


Taylor  v.  Barber. 


larly  to  actions  brought  originally  in  the  district  court, 
and  not  as  an  imperative  rule  in  appeal  cases. 

The  eighth  article  of  the  justices'  act,  under  the  head 
"  Of  appeals  and  proceedings  thereon  in  the  district  court," 
defines  the  practice  to  be  pursued  in  many  particulars, 
when  cases  are  taken  to  that  com-t  by  appeal ;  and  these 
special  provisions  for  such  cases  should  prevail  over  the 
general  rule  established  by  section  thirteen  of  the  "  prac- 
tice act." 

The  second,  third  and  sixteenth  sections  of  the  eighth 
article  above  referred  to,  clearly  contemplate  an  affirm- 
ance of  the  judgment  of  the  justice  without  a  trial  de  novo, 
or  a  writ  of  inquu-y,  to  redetermine  damages  which  had 
previously  been  assessed  in  the  justice's  court;  and  cer- 
tainly no  condition  of  a  case  could  more  manifestly  justify 
an  unqualified  affirmance  than  the  default  of  the  appellant. 
His  fa<ilure  to  appear,  or  to  prosecute  the  appeal  with  due 
diligence,  shows  at  least  an  acquiescence  in  the  decision  of 
the  justice,  and  a  strong  presumption  that  the  appeal  was 
taken  for  delay. 

The  statute  evidently  provides  for  no  reassessment  of 
the  debt  or  damages  in  an  appeal  case  disposed  of  by 
default,  nor  can  we  conceive  any  necessity  for  it  either  in 
reason  or  in  justice.  Had  there  been  no  trial  or  inquiry 
in  the  inferior  tribunal  upon  a  claim  not  reduced  to 
writing,  there  would  then  be  necessity  and  propriety  in  a 
writ  of  inquiry,  and  an  assessment  of  the  damages  in  the 
appellate  court ;  but  why  should  this  be  required  in  cases 
of  default  which  have  once  been  fully  tried  and  deter- 
mined ?  The  appellant  is  only  entitled,  to  a  trial  anew  in 
the  event  that  he  diligently  prosecuted  his  appeal ;  and 
being  in  default  in  that  particular,  the  former  trial  is 
conclusive  against  him. 

But  it  is  urged  that  the  district  court  could  not  render 
such  a  judgment  by  default,  because  section  fifteen  of  said 
article  eight  provides  for  the  trial  of  the  same  cause  of 
action  onh/  in  the  district  court  which  was  tried  before  the 
justice.      Clearly  this  section  has   no  application  to  the 


352  SUPREME  COUllT  CASES, 

Taylor  v.  Barher. 

proceeding,  if  the  judgment  of  the  justice  is  affirmed 
without  a  trial  anew,  and  as  clearly  such  an  affirmance 
is  recognized  by  the  three  sections  of  the  statute  before 
ciled.  The  judgment  may  either  be  affirmed  in  the  dis- 
trict court,  or  on  a  trial  anew  be  rendered  against  the 
appellant.  .If  affirmed,  section  fifteen  has  no  bearing,  but 
if  determined  by  the  latter  alternative,  it  would  prevail, 
and  the  trial  should  be  conducted  accordingly. 

2.  Connected  with  section  fifteen  as  to  the  cause  of 
action,  it  is  objected  that  it  does  not  appear  that  any 
cause  of  action  was  tried  before  the  justice,  and,  as  a  con- 
sequence, there  was  no  cause  of  action  in  the  district 
court  over  which  jurisdi.ction  could  be  entertained.  In 
support  of  this  jDosition,  Rev.  Stat.,  315,  §  4,  is  referred 
to,  which  requires  the  plaintiff,  when  he  commences  his 
suit,  to  set  forth  in  writing  a  plain  statement  of  his 
demand  or  cause  of  action.  There  are  three  reasons  why 
this  objection  cannot  prevail. 

1 .  By  proceeding  to  trial  upon  the  merits,  without  taking 
exception  to  the  cause  of  action,  any  defect  in  that  particu- 
lar must  be  considered  as  waived  by  the  defendant. 

2.  The  affidavit  filed  by  the  plaintiff  at  the  commence- 
ment of  this  suit  we  should  consider  a  sufficient  state- 
ment of  this  demand,  even  if  the  fourth  section  of  the 
statute  was  in  force. 

3.  But  that  section  is  repealed  by  statute  of  1844,  p.  42, 
§  14.  A  verbal  statement  of  plaintiff's  demand  entered 
upon  the  docket  of  the  justice,  and  indorsed  upon  the 
writ,  is  all  that  is  now  required  by  the  act  to  regulate 
proceedings  before  justices  of  the  peace. 

By  courts  generally,  it  is  not  expected  that  technical 
nicety  and  legal  precision  can  characterize  the  proceed- 
ings of  justices  of  the  peace ;  and  hence  irregularity  and 
deficiency  in  form  are  viewed  with  liberality,  and  the  doc- 
trine now  prevails,  at  least  in  American  courts,  that  it  is 
sufficient  if  there  appears  to  be  a  good  ground  of  action 
within  the  justice's  jurisdiction,  and  if  the  substantial 
merits  of  the  cause  have  been  tried.     This  case  having'  been 


DUBUQUE,  JULY,  1849.  353 

Ciss  V.  The  State. 

conducted  conformable  to  this  rule,  and  with  even  more 
than  ordinary  correctness,  under  the  regulations  provided 
by  our  state,  we  cannot  feel  justified  in  disturbing  the 
judgment. 

Judgment  affirmed. 

L.  Ciar/i,  for  plaintiff  in  error, 

Davis  and  Bisselly  for  defendant. 


CASS  et  al.  V.  THE  STATE. 

Where  a  petition  for  a  change  of  venue  sets  forth  tlie  requisite  facts  verified 
by  tiie  affidavit  of  the  party,  it  is  the  duty  of  the  judge  to  grant  the  change 
to  the  nearest  county,  without  any  further  proof  or  inquiry. 

The  statute  of  1845  requires,  in  criminal  eases,  the  facts  stated  in  tlie  peti- 
tion to  be  verified  by  the  affidavit  of  at  least  two  respectable  witnesses. 

if  a  party  complies  with  the  statute,  in  his  application  for  a  change  of  venue, 
the  court  has  no  discretion  to  refuse,  but  should  grant  the  change  to  the 
nearest  county  not  made  olyectionable  by  the  petition,  without  requiring 
any  other  testimony  than  the  petition  and  affidavit. 

A  father  may  testify  in  a  criminal  case  in  behalf  of  his  son. 

Error  to  Clinton  District  Court. 

Opinion  by  Williams,  C.  J.  David  Cass  et  al.  were 
indicted  at  October  term  of  the  district  court  of  Clinton 
county,  for  a  riot.  Before  the  calling  of  the  cause  for 
trial  the  defendants  filed  their  affidavit  and  petition  for 
^  change  of  venue,  as  provided  by  the  statute.  The  affi- 
davit sets  forth,  that  "  they  believe  that  the  inhabitants  of 
Clinton  county  are  so  prejudiised  against  them,  that  they 
cannot  expect  an  impartial  trial ;  and  that  the  same  causes 
exist  in  the  counties  of  Scott  and  Cedar.  The  court  refused 
to  grant  the  change  of  venue  until  an  examination  of  wit- 
nesses was  had  as  to  the  grounds  of  affiants'  belief.  Joseph 
€ooper,  one  of  the  witnesses  to  the  affidavit,  was  called 


354  SUPREME  COURT  OASES, 


Cass  V.  The  State. 


and  examined  on  his  oath,  orally,  by  the  court,  as  to  the 
ground  of  his  belief.  He  stated,  "  that  as  to  Scott  county, 
he  knew  nothing  but  from  rumor.  That  he  had  attended 
the  court  inOedar  county  last  spring;  that  he  heard  a  great 
deal  said  about  this  affair.  That  he  heard  more  than  half 
of  the  people  at  court  talk  about  this  matter,  and,  from 
what  was  said,  he  had  formed  the  belief  that  there  was 
prejudice,  although  he  could  not  say  that  they  seemed 
excited  on  the  subject.  They  condemned  the  act,  though 
they  knew  nothing  of  the  defendants.  He  did  not  know 
that  they  had  any  knowledge  of  the  affair,  except  by  rumor. 
That  he  resided  in  Oedar  county,  and  that  he  heard  con- 
siderable said  of  the  aff'air  in  the  neighborhood  where  he 
resided."  To  this  examination  the  counsel  of  the  defend- 
ants excepted,  Lyman  Evans,  another  of  the  affiants,  on 
motion  of  the  attorney  for  the  state,  was  then  decided  to 
be  incompetent  to  make  the  affidavit,  and  testify  as  a  wit- 
ness in  the  matter,  on  the  ground  that  he  was  the  father 
of  one  of  the  defendants,  and  therefore  interested.  To  this 
ruling  of  the  court  the  counsel  for  the  defendants  excepted. 
Edward  West,  the  other  affiant,  then  stated,  orally,  that 
he  testified  only  as  to  Olinton  county.  The  court  then 
ordered  the  venue  of  the  case  to  be  changed  to  Cedar 
county.  To  this  proceeding  of  the  court,  the  defendants' 
counsel  excepted  ;  and  the  following  assignments  are  pre- 
sented as  grounds  of  reversal  : 

1.  The  court  erred  in  awarding  a  change  of  venue  in 
this  cause  from  said  county  of  Clinton  to  the  county  of 
Cedar. 

2.  The  com't  erred  in  examining,  orally,  Edward  West 
and  Joseph  Cooper,  the  witnesses  whose  affidavit  was  filed 
in  support  of  the  application  for  the  change  of  venue. 

3.  The  court  erred  in  looking  beyond  the  testimony  set 
forth  in  the  affidavit  filed  with  the  application  for  a  change 
of  venue. 

4.  If  the  court  had  authority  to  examine,  orally,  the 
witnesses  West  and  Cooper,  as  to  the  ground  of  their  be- 
lief as  to  the  existence  of  the  cause  for  a  change  of  venue. 


DUBUQUE,  JULY,  1849.  355 

Cuss  V.  The  State. 

there  was  error  in  excluding  Lyman  Evans  as  a  witness, 
in  not  examining  him,  and  in  deciding  that  said  Evans  was 
interested. 

The  record  shows  that  the  petition  of  the  defendants, 
setting  forth  the  cause  for  the  change  of  venue,  was  veri- 
fied by  their  affidavit  in  compliance  with  the  statute ;  and 
tliat  the  truth  of  their  affidavit  was  verified  by  the  affi- 
davit of  Lyman  Evans,  Edward  West,  and  Joseph  Cooper, 
as  required  by  the  act  of  the  10th  of  June,  1845,  regulating 
the  proceeding  of  a  change  of  venue  in  criminal  cases. 

As  there  is  a  proj)riety  in  settling  the  practice  in  pro- 
ceedings of  this  kind  under  the  statute,  we  will  consider 
the  subject  matter  involved  in  all  the  assignments  of  error. 

Rev.  Stat,  638,  provides,  "  that  either  party  may  have  a 
change  of  venue  for  the  following  causes  : 

*'  1.  That  the  inhabitants  of  the  county  are  so  prejudiced 
against  the  applicant  that  he  cannot  expect  an  impartial 
trial. 

"  2.  That  the  opposite  party  has  an  influence  over  the 
minds  of  the  inhabitants  of  the  county. 

''  3.   That  the  judge  is  prejudiced  against  the  applicant." 

This  act,  by  the  13th,  14th,  and  15th  sections,  is  made 
applicable  to  criminal  cases  by  providing  the  mode  of  pro- 
cedure therein.  In  criminal  cases,  as  well  as  civil,  the 
affidavit  of  the  party  alone  is  made  sufficient  to  establish 
the  facts,  or  any  of  them,  for  which  a  change  of  venue 
may  be  obtained.  In  1845,  by  an  act  approved  June 
10  of  that  year,  and  entitled,  "  An  act  amendatory  of 
an  act  to  provide  for  changing  the  venue  in  civil  and 
criminal  cases,  approved  13th  of  February,  1843,"  the 
legislature  changed  the  practice  in  criminal  cases,  as 
follows  :  Sec.  2.  "  That  when  a  change  of  venue  is  jjrayed 
for  in  criminal  cases,  the  truth  of  the  affidavit  ol  the 
party  wishing  the  same  shall  be  verified  by  the  affidavit 
of  at  least  two  respectable,  disinterested  persons,  before 
such  change  is  allowed  by  the  judges."  The  record  shows 
that  tills  statutory  requirement  was  complied  with  in  the 
case  at  bar. 


356  SUPREME  COURT  CASES, 

Cass  V.  The  State. 

These  being  tlie  facts  and  the  law  of  the  case,  we  will 
proceed  directly  to  the  assignments  of  error. 

Under  the  act  of  February,  1843,  first  cited,  all  that 
was  necessary  on  the  part  of  the  person  wishing  a  change 
of  venue,  was  to  file  his  petition,  praying  for  it,  setting 
forth  therein  any  of  the  causes  contained  in  that  act,  with 
his  affidavit  appended  thereto,  verifying  the  fact  or  facts 
set  forth  therein,  and  alleging  that  he  has  just  reason  to 
believe  that  he  cannot  receive  a  fair  and  impartial  trial  on 
account  of  the  cause  or  causes  set  forth. 

The  party  making  the  application  having  complied  with 
the  requisitions  of  the  statute,  it  is  the  duty  of  the  judge, 
without  further  inquiry,  to  award  the  change  of  venue  to 
the  nearest  county  where  the  causes  assigned  do  not  exist. 
Such  has  been  the  construction  of  this  statute,  and  the 
practice  thereon,  as  established  by  our  courts.  By  it,  we 
think,  the  obvious  intention  of  the  legislature  is  efiectu- 
ated. 

There  is  nothing  in  the  amendatory  act  of  June  10, 
1845,  which  tends  to  vary  this  construction.  It  merely 
requires  the  affidavit  of  at  least  two  respectable,  dis- 
interested witnesses,  by  which  that  of  the  applicant  shall 
be  verified ;  with  this  addition,  in  criminal  cases,  the  law, 
so  far  as  this  case  is  concerned,  remains  unaltered. 

The  statute  clearly  sets  forth  all  the  acts  necessary  to  be 
done  to  establish  the  right  of  the  applicant  to  a  change 
of  venue,  and  the  jurisdiction  as  to  the  county  from  and 
to  which  it  shall  be  changed.  The  applicant  having  com- 
plied with  the  requu-ements  of  the  statute,  is  entitled  to 
the  change  of  venue  as  his  right.  It  is  the  duty  of  the 
court  to  grant  it,  without  imposing  any  further  require- 
ment. There  is  no  power  conferred  on  the  court,  by  the 
statute,  to  dispense  with  any  of  its  requisitions  to  aid  the 
applicants,  nor  can  any  be  exercised  to  increase  the  duties 
thereby  enjoined,  and  which  might  hinder  him  in  obtain- 
ing his  right.  The  statute  vests  no  discretionary  power 
m  thecourt,  by  the  exercise  of  which  the  change  of  venue 
might  be  refused,  when  the  applicant  has  complied  with 


DUBUQUE,  JULY,  1849.  357 


Cass  V.  The  State. 


the  statute  by  doing  all  that  it  required.  The  party  could 
not  be  called  upon  to  be  prepared,  upon  the  finding  of  an 
indictment  in  term  time,  to  know  and  present  facts  and 
circumstances  which,  besides  those  required  by  the  law  of 
the  laud,  might  be  necessary  and  sufficient  to  deter- 
mine the  discretionary  power  of  the  court  in  his  favor  as 
to  his  belief,  or  that  of  his  witnesses,  of  the  existence  of 
prejudice  in  the  minds  of  the  inhabitants  of  a  county 
against  him.  It  is  neither  the  belief  nor  the  judgment 
of  the  court  that  is  by  the  statute  made  the  ground 
upon  which  the  right  of  the  applicant  rests,  but  of  the 
party  and  his  witnesses.  The  county  of  Cedar  was,  by 
the  affidavits,  made  as  objectionable  as  was  the  county  of 
Clinton.  The  court  was  bound,  by  the  operation  of  the 
law,  to  act  upon  the  affidavits  alone,  they  being  sufficient, 
and  to  grant  the  prayer  by  ordering  a  change  of  the  venue 
to  the  nearest  county  where  the  causes  for  the  change 
assigned  did  not  exist.  The  object  of  the  law  is  to  secure 
to  a  party  litigant  an  impartial  trial.  It  frequently  hapj 
pens  that  suits  are  instituted  involving  questions  which 
excite  whole  communities  to  such  a  degree  that  impartial 
or  disinterested  jurors  cannot  be  obtained ;  and  popular 
influence  may  operate  to  pervert  or  prevent  the  due 
course  of  judicial  procedure,  so  that  the  arm  of  the  law  is 
stayed,  or  recklessly  thrust  forth  regardless  of  right,  and 
injustice  instead  of  justice  is  the  result.  It  may  be  alleged 
that  the  mere  belief  of  the  party  and  the  verifying  wit- 
nesses should  not  be  considered  as  sufficient  to  warrant 
the  change  of  venue ;  that  parties,  particularly  in  criminal 
cases,  will  resort  to  this  provision  of  the  statute  with 
purpose  to  thwart  the  designs  of  law  and  justice,  by  the 
procurement  of  delay,  &c.  In  answer  to  this,  it  is  enough 
to  say  that  this  is  a  privilege  or  right,  granted  by  an  act 
of  the  legislature,  which  specially  prescribes  the  grounds 
on  which  it  may  be  claimed  and  had,  as  well  as  the  duty 
of  the  court  when  called  to  act  thereon.  If  to  the  acts 
plainly  enjoined  and  requu-ed  by  the  statute  to  be  per- 
formed by  the  court,  a  discretionary  power  be  added,  how 


358  SUPREME  COURT  CASES, 


Cass  V.  The  State. 


and  where  is  it  to  be  limited?  If  the  judge  may  refuse  to 
credit  the  affidavits  of  the  parties  and  their  witnesses  in 
one  case,  he  may  do  it  in  another.  In  the  exercise  of  such 
discretion,  it  is  not  to  be  supposed  that  the  judgt^  would 
be  prepared  to  decide,  from  his  own  knowledge  of  the  fact, 
whether  the  belief  of  the  existing  prejudice  in  the  county 
alleged  was  well  founded  or  not.  To  be  informed,  then, 
he  would  necessarily,  upon  the  suggestion  of  the  party 
opposed  to  the  change  of  venue,  be  required  to  enter  upon 
an  examination  of  witnesses  in  the  objectionable  county 
to  ascertain  that  fact ;  and  thus  the  attainment  of  the 
object  of  the  statute  would  be  prevented. 

But  suppose  the  cause  suggested  for  the  change  to  be 
a  charge  of  prejudice  against  the  party  in  the  mind  of  the 
judge  himself,  will  it  be  contended  that  this  act  of  the 
legislature  should  be  so  construed  that  the  judge  thus 
under  its  provisions  charged  with  such  prejudice,  shall 
have  a  discretionary  power,  in  a  summary  way,  to  question 
and  inquire  into  the  grounds  of  the  belief  of  the  affiants, 
and  their  verifying  witnesses,  and  decide  upon  the  right 
claimed  ?  We  think  not.  With  a  proper  regard  to  the 
rule  of  construction,  as  to  powers  given  by  a  statute  like 
this,  where  a  right  is  conferred  on  a  party,  and  the  duties 
clearly  set  forth,  upon  the  performance  of  which  it  shall 
accrue,  and  where  the  duty  of  the  tribunal  whose  province 
it  is  to  grant  that  right  is  plainly  pointed  out,  it  cannot 
be  allowed  that  a  party  shall  be  required  to  do  more  than 
is  enjoined  by  the  statute.  That  such  power  might  be  so 
exercised  as  to  endanger,  if  not  destroy,  the  rights  of  a 
party,  is  obvious. 

By  a  proper  construction  of  the  act  of  the  legislature, 
the  action  of  the  court  is  due  upon  the  filing  and  presenta- 
tion of  the  petition  and  affidavits  of  the  party,  and  verifying 
witnesses,  as  required  by  the  statute  in  criminal  cases. 
These  being  sufficient,  it  is  the  duty  of  the  com't  to  grant 
the  prayer  of  the  party.  If  anything  more  be  necessary 
to  render  the  law  perfect  for  the  accomplishment  of  the 
€nd  designed,  it  is  the  province  as  well  as  the  duty  of 


DUBUQUE,  JULY,  1549.  359 

Cass  V.  The  State. 

the  legislature  to  provide  for  it,  in  the  exercise  of  their 
power 

Wliat  has  been  already  said  substantially  disposes  of 
the  questions  raised  by  the  second  and  third  assignments 
of  error ;  the  affidavits  being  sufficient  as  filed,  to  esta- 
blish the  rio-ht  of  the  defendants  to  the  change  of  venue 
ur.der  the  statute.  The  court,  by  requiring  the  witnesses 
to  answer  questions,  assumed  and  exercised  a  power  not 
conferred  upon  it  by  the  statute,  that  being  the  only  law 
which  in  such  case  the  court  could  look  to  for  its  power, 
and  the  mode  of  exercising  it.  If  the  coui't  could  be  per- 
mitted to  go  beyond  the  requirements  of  the  statute,  then 
there  would  be  difficulty  in  saying  where  and  how  it  is  to 
be  limited. 

The  fourth  assignment  of  errors  is  founded  upon  the 
ruling  of  the  court,  by  which  the  witness  Lyman  Evans 
was  excluded  from  testifying,  on  the  ground  of  interest. 
We  have  already  said  that  the  court  below  had  not  the 
power,  under  the  statute,  to  require  more  of  the  party 
applying  for  a  change  of  venue,  than  the  petition  and 
affidavits ;  and  had  no  authority  for  requiring  additional 
testimony  by  parol.  That  the  right  asserted  and  claimed 
depended  entii'ely  upon  the  sufficiency  of  the  petition  and 
affidavits,  so  far  as  the  causes  for  the  change  of  venue 
were  concerned.  But  supposing  that  the  examination  of 
the  witnesses  by  parol  had  been  in  accordance  with  the 
provision  of  the  statute,  still  the  court  erred  by  deciding 
that  Lyman  Evans,  who  was  the  father  of  one  of  the  de- 
fendants, was  for  that  reason  incompetent  to  testify,  on 
the  ground  of  interest.  We  cannot  discover  by  what  prin- 
ciple of  the  law  of  evidence  a  father  would  be  prevented 
from  testifying  in  a  criminal  case,  on  the  part  of  his  son, 
at  any  stage  of  the  proceeding  where  evidence  might  be 
properly  called  for.  The  fact  of  the  witness  being  the 
father  of  one  of  the  defendants,  however  considered  as  to 
his  credibility,  could  not  operate  to  exclude  his  testimony. 
This  would  be  the  case  where  the  relation  of  husband  and 
wife  exists.     Neither  of  these'would  be  allowed  to  testify 


360  SUPREME  COURT  CASES, 

Hildreth  v.  Tomllnson. 

for  the  other  in  civil  or  criminal  cases.  But  the  rule  of 
incompetency  for  consanguinity  has  never,  that  we  know, 
been  extended  to  the  relation  of  parent  and  child. 

The  ruling  of  the  court  below,  ordering  the  venue  to  be 
changed  to  Cedar  county,  is  reversed;  and  it  is  ordered 
that  this  cause  be  remanded  for  further  proceedings  not 
inconsistent  with  this  opinion. 

Judgment  reversed. 

Leffingwell^  Wilson  and  Smith,  for  plaintiffs  in  error. 

W.  L,  Burge  and  J.  P,  Cook^  for  the  state. 


HILDEETH  v.  TOMLINSON. 

A  general  allegation  of  fraud,  in  a  plea  to  an  action  on  a  promissory  note,  ifl 
sufficient. 

A  deeisiou  of  the  territorial  supreme  court  will  not  be  overruled  unless  pal- 
pably erroneous. 

Error  to  Jackson  District  Court. 

Opinion  by  Greene,  J.  An  action  of  assumpsit  on  a 
promissory  note  against  the  maker,  Joseph  E.  Hildreth. 
Pleas,  general  issue,  and  one  charging,  in  general  terms, 
that  the  "  note  was  obtained  by  fraud,  covin,  circumven- 
tion, and  misrepresentation."  A  trial  was  had  upon  the 
general  issue,  and  a  judgment  rendered  for  the  plaintiff. 
To  the  plea  of  fraud  the  plaintiff  demurred ;  the  demurrer 
was  sustained,  and  the  decision  of  the  court  thereon  is 
now  assigned  as  error.  But  one  question  is  presented  in 
the  case  for  adjudication  :  Are  general  allegations  of  fraud 
sufficient  in  a  plea  to  an  action  on  a  promissory  note  ? 

Our  statute  provides,  that  if  any  fraud  or  circumvention, 


DUBUQUE,  JULY,  1849.  361 

Hiklreth  v.  Tomlinson. 

be  used  in  obtaining  the  making  or  execution  of  any  pro- 
missory note,  it  may  be  pleaded  in  bar  to  any  action  there- 
on. Rev.  Stat.  p.  453,  §  0.  Under  this  statute  it  was 
decided  by  our  territorial  supreme  court,  in  1846,  in  the 
case  of  Hampton  v.  Pearce,  Morris,  489,  that  a  general 
plea  of  fraud  to  an  action  on  a  promissory  note  is  good. 
Since  that  decision,  a  general  averment  of  fraud,  in  ob- 
taining a  note  from  the  maker,  has  been  deemed  sufficient, 
until  the  present  case  arose  in  the  court  below.  And  even 
now,  under  the  authorities  and  able  arguments  submitted 
to  our  consideration,  we  think  no  sufficient  reason  is  pre- 
sented for  abrogating  a  practice  which  has  generally  ob- 
tained in  our  state  since  Hampton  v.  Fearce,  and  which 
was  fully  sanctioned  in  the  decision  of  that  case.  To  justify 
us  in  overruling  a  deliberate  judgment  of  the  supreme 
court,  whether  made  before  or  since  our  state  organization, 
the  decision  must  appear  to  be  palpably  erroneous.  But 
Hampton  v.  Pearce  does  not  appear  to  us  repugnant  to 
any  well  recognized  principle  of  law  or  rule  of  practice. 
A  general  plea  that  a  deed  was  obtained  by  fraud  is  recog- 
nized as  good  by  Chitty's  Cr.  PL,  8  Am.  Ed.,  p.  537. 
And  to  a  plea  of  release  he  says,  on  p.  582,  the  plaintiff 
might  reply  "  that  it  was  obtained  by  c/^^r^^s  ot  fraud,  and 
it  was  then  considered  to  be  unnecessary  and  injudicious 
to  state  the  particulars  of  the  fraud."  If  such  general 
allegations  of  fraud  may  be  urged  in  the  case  of  a  deed, 
why  may  they  not  be  equally  applicable  in  the  case  of  a 
note  ?  and  if  good  in  a  replication  to  a  plea  of  release,  why 
not  equally  good  in  a  plea  to  a  declaration  on  a  note  ? 
Obviously,  the  same  reasoning  which  will  justify  the  one 
must  apply  with  equal  force  in  support  of  the  other. 

By  many  courts  it  has  been  decided  that  fraud  in  ob 
taining  a  promissory  note,  or  to  impeach  the  consideration 
of  a  simple  contract,  may  be  given  in  evidence  under  the 
general  issue.  Brewer  v.  Harris,  2  Smede  &  Marsh.,  84; 
Loffiand  v.  Russell,  Wright,  438  ;  Armstrong  v.  Hall, 
Coxe,  N.  J.,  178;  Elliott  v.  Cor/shall,  4  Blackf.,  240.  That 
fraud  constitutes  a  legal  defence  under  the  general  issue. 
Vol.  II.  24 


362  SUPREME  COURT  CASES, 

Hildreth  v.  Tomlinson. 

in  a  proceeding  like  the  present,  appears  to  be  well  siip- 
l)orted  by  authority.  Under  such  a  practice  it  must  be^ 
admitted  fallacious  to  require  specific  averments  of  the 
facts,  circumstances  and  character  of  the  fraud.  The 
general  plea  of  fraud  is  of  itself  an  important  limitation 
to  the  field  of  controversy,  which  would  otherwise  be  open 
between  the  parties  under  the  general  issue.  It  is  diffi- 
cult for  us  to  understand  how,  under  such  circumstances, 
the  general  plea  of  per  fraudum  can  work  surprise  upon 
the  plaintiff"  as  payer  of  the  note.  It  narrows  the  contro- 
versy to  a  special  point,  with  which  the  payer  of  \h&  note 
cannot  but  be  familiar,  for  it  is  confined  to  fraud  or  cir- 
cumvention, averred  to  have  been  used  in  obtaining  the 
execution  of  the  instrument  sued  upon.  The  plea  in 
efffect  acknowledges  the  making  of  the  note,  but  seeks  to 
avoid  it,  by  showing  that  it  was  obtained  in  a  transaction 
which  would  invalidate  its  enforcement,  because  it  was 
fraudulent. 

Respectable  authorities,  it  is  true,  have  been  adduced 
in  this  case  to  show  that  a  general  plea  of  fraud  is  bad, 
and  that  the  circumstances  constituting  the  fraud  should 
be  specified.  But  most  of  those  authorities  are  not  appli- 
cable to  promissory  notes,  nor  could  the  decisions  have 
been  made  upon  statutes  strictly  analogous  to  ours  ;  and 
while  some  of  them  may  be  regarded  as  in  conflict  with 
our  decision  in  this  case,  we  are  still  encouraged  by 
good  authorities  to  re-affirm  the  doctrine  of  Hampton  v. 
Pearce. 

In  Pence  v.  Smock,  2  Blackf.,  315,  and  in  Huston  v, 
Williams,  3  ib.,  170,  general  pleas  of  fraud  to  actions  on 
bonds  were  held  to  be  good  ;  and  in  Elliott  v.  Cogshall,  4 
Blackf.,  239,  the  propriety  of  a  general  plea  of  fraud  im- 
peaching the  consideration  of  a  simple  contract  was,  in  a 
well  considered  and  able  opinion,  held  to  be  conclusive. 

The  same  doctrine  is  entertained  in  Kentucky,  not  only 
in  actions  upon  simple  contract,  but  also  upon  deeds.  1 
J.  J.  Marsh,  106;  2  Dana,  161.  So  in  Remberton  v. 
Staples,  6  Mis.,  59. 


DUBUQUE,  JULY,  1849.  363 

Hedinger  v.  Silsbee. 

Under  the  foregoing  reasons  and  authorities  "we  conclude 
that  a  general  plea  of  fraud  to  an  action  on  simple  con- 
tract is  good. 

Judgment  reversed. 

T,  S.  Wilson  and  P.  Smith,  for  plaintiff  in  error, 

L,  Clark  and  B.  F.  Spurr,  for  defendant. 


HEDINGER  v.  SILSBEE. 

The  amonnt  of  a  plaintiff's  claim  need  not  be  mentioned  in  the  body  of  ft 
summons  from  a  justice  of  the  peace ;  but  the  amount  claimed,  including 
interest  and  costs,  should  be  indorsed  upon  the  summons. 

The  want  of  an  indorsement  of  the  amount  of  plaintiff's  claim  cannot  be 
taken  advantage  of  after  the  general  appearance  of  the  defendant.  Such 
appearance  waives  the  want  of  an  indorsement. 

Error  to  Jackson  District  Court. 

Opinion  by  Greene,  J.  This  was  an  action  of  assump- 
sit commenced  before  a  justice,  and  taken  to  the  district 
court  by  a  writ  of  certiorari.  By  the  affidavit  for  the 
certiorari,  and  the  transcript  of  the  justice,  it  appears 
that  on  the  return  day  of  the  original  writ,  the  defendant 
appeared  and  moved  for  a  nonsuit,  for  the  reason  that  the 
amount  claimed  was  not  mentioned  in  the  body  of  the 
summons,  which  motion  was  not  granted.  The  defendant 
then  obtained  a  change  of  venue.  On  the  day  set  for  trial 
after  the  change  of  venue,  the  defendant  moved  for  a  non- 
suit, on  the  ground  that  the  amount  claimed  was  not  in- 
dorsed upon  the  summons,  as  required  by  statute.  This 
motion  was  sustained,  and  a  judgment  of  nonsuit  rendered 
against  the  plaintiff.  Within  the  time  stipulated  by 
statute,  the  plaintiff  made  application  to  the  justice  to 
have  the  nonsuit  set  aside  and  a  new  trial  awarded.     The 


364  SUPREME  COURT  CASES, 

Hedinger  v.  Silsbee. 

application  was  granted,  and  the  defendant  duly  notified 
of  the  time  set  for  trial.  Upon  the  day  set  for  trial  the 
parties  appeared,  and  the  defendant  again  made  his  motion 
for  a  nonsuit  for  defective  indorsements  on  the  writ,  hut 
the  justice  overruled  the  motion ;  whereupon  the  defend- 
ant abandoned  the  suit,  and  the  cause  having  been  fally 
heard,  the  justice  rendered  judgment  in  favor  of  the  plain- 
tiff for  the  sum  of  |14.50.  Upon  this  state  of  the  proceed- 
ing's, as  set  forth  under  the  certiorari,  the  district  court 
reversed  the  judgment  of  the  justice.  The  correctness  of 
that  decision  is  now  controverted,  and  it  is  claimed  that 
there  is  nothing  in  the  returns  of  the  justice  which  shows 
sufficient  error  to  justify  a  reversal  of  the  proceedings. 

So  far  as  we  are  enabled  to  judge  of  the  proceedings  from 
the  transcript  of  the  justice,  they  appear  to  have  been  con« 
ducted  with  substantial  correctness,  so  far  as  the  legal 
rights  of  the  plaintiff  in  error  were  affected  by  them.  The 
motion  first  made  by  him  was  very  properly  overruled, 
because  the  statute  does  not  require  the  amount  of  the 
plaintiff's  claim  to  be  mentioned  in  the  body  of  the  sum- 
mons. The  motion  subsequently  made  before  the  justice 
to  whom  the  venue  was  changed  was  improperly  granted, 
because  the  defect  complained  of  was  waived  by  the  pre- 
vious appearance  of  the  party,  to  move  for  a  nonsuit  on 
other  and  insufficient  grounds,  and  for  a  change  of  venue. 
It  is  true  the  statute  requires  the  justice  to  indorse  upon 
the  summons  in  such  cases  the  amount  claimed  by  the 
plaintiff,  including  interest  and  costs.  Rev.  Stat.,  317,  §  15. 
A  writ  without  such  indorsement  is  defective,  but  it  is  one 
of  those  defects  which  is  cured  by  the  general  appearance 
of  the  defendant.  Had  he  appeared  specially,  in  the  first 
instance,  and  suggested  this  objection  to  the  justice,  it  would 
on  motion  have  been  sufficient  ground  for  a  nonsuit ;  but 
as  he  had  previously  appeared  and  moved  for  other  objects 
in  defending  the  action,  that  motion  came  too  late,  and  was 
erroneously  granted  by  the  justice.  This  defective  de- 
cision was  sufficient  cause,  under  the  statute,  to  have  the 
nonsuit  set  aside  and  a  new  trial  granted.    Rev.  Stat.,  324, 


DUBUQUE,  JULY,  1849.  365 

Culver  i\  Whipple. 


§  §  3,  4.  In  that  particular,  we  regard  the  proceedings  of 
the  justice  as  substantially  correct,  and  as  the  judgment 
there  appears  to  have  been  regularly  entered,  we  think 
it  was  improperly  reversed  by  the  district  court. 

Judgment  reversed. 

P.  Smith,  for  plaintiff  in  error. 

S,  Hempstead,  for  defendant. 


CULVER  V.  WHIPPLE. 

A  Tariance  between  the  writ  and  declaration  cannot  be  taken  advantage  of 

by  demurrer  to  the  declaration. 
In  a  case  of  such  variance  the  writ  may,  on  payment  of  costs,  &c.,  be  amended 

60  as  to  conform  to  the  declaration, 

Ekror  to  Jackson  District  Court. 

Opinion  hy  Greene,  J.  A  summons  was  issued  in  this 
case  against  Whipple,  in  an  action  on  the  case  on  promise. 
A  writ  of  attachment  appears  also  to  have  been  issued  and 
executed  in  due  form  under  the  statute.  But  the  declara- 
tion filed  was  in  an  action  of  debt.  The  defendant 
demurred  to  the  declaration,  craved  oyer  of  the  ^^Tit  of 
summons,  and  assigned  as  cause  of  demurrer  the  variance 
between  the  writ  and  declaration,  in  that  the  writ  is  in 
trespass  on  the  case  on  promise,  and  the  declaration  in 
debt.  The  plaintiff,  by  his  counsel,  objected  to  the  filing 
of  the  demm-rer  as  inajiplicable  to  the  question  therein 
raised.  The  court  overruled  the  objection,  sustained  the 
demurrer,  and  gave  judgment  for  the  defendant.  This 
decision  is  assigned  as  error,  and  the  objection  raised,  that 
a  variance  between  the  writ  and  declaration  cannot  be 
taken  advantage  of  by  demurrer. 

Upon  a  careful  examination  of  authorities,  we  find  but 


366  SUPREME  COURT  CASES, 

Steinhelber  v.  Edwards. 

little  difficulty  in  arriving  at  a  conclusion.  The  recent 
practice  in  the  English  courts  appears  to  be  uniform,  and 
the  rule  barely  meets  with  an  exception  in  this  country, 
that  the  objection  of  variance  between  the  writ  and  declara- 
tion "  is  not  a  ground  of  demurrer  to  the  declaration, 
but  merely  of  a  summary  application  to  set  aside  the  de- 
claration for  irregularity."  1  Chit.  PI.,  254.  Chitty 
remarks  that  by  this  practice,  the  jjlaintiif  may  abandon 
his  first  process  and  issue  a  new  writ,  adapted  to  the  form 
of  action  set  forth  in  his  declaration. 

But  we  think  it  would  be  a  more  judicious  practice  in 
such  cases,  and  authorized  by  our  statute  of  jeofails,  for 
the  courts  to  correct  such  deviation,  by  ordering  the  writ 
to  be  amended  at  the  cost  of  the  plaintiff;  or  if  occasioned 
by  the  clerk,  in  neglecting  to  follow  the  praecipe,  then 
at  his  cost.  And  if,  in  the  opinion  of  the  court,  such 
amendment  occasion  surprise  to  the  defendant,  a  continu- 
ance of  the  cause  should  be  ordered  till  the  next  term. 
By  such  a  practice,  we  think  much  unnecessary  incon- 
venience and  expense  would  be  saved  to  parties. 

We  think  the  court  erred  in  acting  upon  and  sustaining 
the  demurrer. 

Judgment  reversed. 

L,  Clark,  for  plaintiff  in  error. 

Wilson  and  Smith,  for  defendant. 


STEINHELBER  v.  EDWARDS. 

Under  the  statute  the  signature  of  the  indorser  of  a  note  need  not  b* 
proved,  unless  it  is  denied  under  oath. 

Error  to  Scott  District  Court. 

Opinion  bj  Gtreene,  J,     Appeal  from  a  justice  of  the 
peace  to  the  district  court.     The  suit  was  commenced  by 


DUBUQUE,  JULY,  1849.  367 

Steinhelber  v.  Edwards. 

M.  Edwards  against  Ezekiel  Steinhelber,  on  a  promissory 
note  made  by  him  to  Jacob  Berger,  and  indorsed  by 
Berger  to  Edwards.  By  the  decision  of  the  justice,  the 
plaintiff  below  was  not  permitted  to  recover,  and  he  there- 
upon appealed  to  the  district  court,  where  the  defendant 
objected  to  the  admissibility  of  the  note  as  evidence,  with- 
out proof  of  the  assignor's  signature.  The  objection  was 
overruled.  This  ruling  is  now  urged  as  error,  and  raises 
the  only  j^oint  in  the  case  which  has  not  been  heretofore 
adjudicated  by  this  court.  In  support  of  this  decision,  re- 
ference is  made  to  the  statute  regulating  promissory  notes, 
&c.  Rev.  Stat.,  455,  §  10.  That  section  provides,  tliat 
"  the  signature  to  all  bills,  promissory  notes,  bonds  or  other 
instruments,  or  to  any  assignments  thereon,  on  which  suit 
is  or  may  be  commenced  in  any  of  the  courts  of  this  ter- 
ritory (state),  shall  be  considered  pri?na  /acie  evidence  of 
their  execution,  and  the  party  denying  the  same,  his  agent 
or  attorney,  shall  deny  the  same  by  oath,  when  the  party 
introducing  the  instrument  shall  prove  the  signature  by 
extrinsic  evidence  :  Provided,  If  the  defendant  fails  to  ap- 
pear at  the  first  term  of  the  court,  the  plaintiff,  in  order  to 
obtain  a  judgment  against  him  at  that  term,  must  prove 
the  execution  and  assignment  of  the  note,  bond  or  other 
instrument."  It  is  contended  that  this  section  does  not 
extend  to  the  signature  of  a  party  who  transfers  a  note  by 
indorsement.  But  we  think  it  is  obviously  shown  by  the 
comprehensive  letter  of  the  section,  that  the  legislature  in- 
tended to  comprise  all  such  indorsements  under  that  re- 
medial exemption  from  extrinsic  proof.  It  extends  to  the 
signature  of  any  assignments  on  the  note.  It  is  not  limited 
to  any  particular  class  or  kind  of  assignment,  but  applies 
indiscriminately  to  all,  whether  made  in  express  terms  or 
by  necessary  im]3lication  of  law.  The  proviso  of  the  sec- 
tion as  explanatory  of  what  precedes  it,  shows  that  after 
the  ap})earauce  term,  it  is  not  necessary  to  prove  either  the 
execution  or  the  assignment  of  the  note.  The  word  "  as- 
signment" iu  connection  with  those  of  "  any  assignments,'* 
in  the  second  line  of  the  section,  manifestly  extends  in  ita 


368  SUPHEME  COURT  CASES, 

McMuIlan  v.  Mackenzie. 

signification  to  an  indorsement  or  transfer  of  the  instru- 
ments designated.  Any  other  construction  would  not,  we 
think,  be  consistent  with  the  object  of  the  legislature  in 
superseding  unnecessary  proof,  where  the  signature  is  not 
denied  under  oath.  We  conclude,  then,  that  the  court  be- 
low very  properly  admitted  the  note  in  evidence. 

Judgment  affirmed, 

jE".  Cook,  for  plaintiff  in  error, 

P.  Smith,  for  defendant. 


McMULLATT  et  al  v.  MACKENZIE. 

The  existence  of  a  partnershif)  is  a  question  of  fact  to  be  determined  by  the 
jury,  wLio  are  alone  autliorized  to  decide  upon  tlie  weigiit  and  sufficiency 
of  tlie  testimony  adduced  to  establish  the  fact. 

The  fact  that  the  defendants  conducted  a  smithing  business  together  is 
prima  facie  evidence  of  a  co-partnership. 

Where  a  note  is  given  in  the  name  of  a  firm,  it  is  presumptive  evidence  that 
it  was  given  for  a  consideration  furnished  to  the  co-partnership,  and  the 
onusprohandi  lies  upon  the  party  seeking  to  avoid  the  note,  to  show  that 
it  was  given  for  some  other  purpose. 

Error  to  Clayton  District  Court. 

Opinion  by  Greene,  J.  This  action  was  commenced 
in  assumpsit  by  Donald  Mackenzie  against  Patten 
McMullan  and  Glendower  M.  Price,  on  promissory  notes 
executed  by  Patten  McMullan  &  Co.  Verdict  and  judg- 
ment against  the  defendants  in  the  courts  below  for  the 
sum  of  $1022.50. 

We  are  informed  by  the  bill  of  exceptions,  that  on  the 
trial  of  the  cause  the  plaintiff  proved  by  two  witnesses  that 
the  defendants  had  carried  on  a  smithingbusiness  together; 
and  by  one  witness,  that  both  of  the  defendants  acknow- 
ledged, prior  to  date  of  note,  that  they  were  doing  that 


DUBUQUE,  JULY,  1849.  369 


McMuUan  v.  Mackenzie. 


business  together.  No  other  proof  of  partnership  having 
been  adduced,  the  defendants  requested  the  court  to  in- 
struct the  jury  that  the  evidence  was  insufficient.  But 
the  court  refused  to  give  the  instruction,  and  thereu[)on 
charged  the  jury  that  the  fact  that  they  had  done  a  smelt- 
ing business  togetlier  was  prima  J'acie  evidence  of  a  part- 
nei'ship.  The  defendants  excepted  to  this  ruling  of  the 
court  as  error. 

1.  The  question  arises,  Did  the  court  err  in  refusing  the 
instruction  as  asked?  We  think  not.  If  the  evidence 
was  even  insufficient,  it  was  not  within  the  province  of  the 
court  to  decide  the  question.  The  existence  of  the  part- 
nership was  a  question  of  fact  for  the  determination  of  the 
jury,  and  they  alone  were  authorized  to  decide  upon  the 
weight  and  sufficiency  of  the  testimony  to  establish  that 
fact.  Had  the  evidence  been  in  relation  to  one  of  the 
defendants  only,  it  would  have  been  defective  in  law,  for 
if  it  did  not  affect  or  implicate  both  of  them,  it  would  have 
been  no  proof  of  the  partnership.  In  that  event  the  court 
might  have  given  the  instruction  as  asked,  because  the 
evidence  would  have  been  insufficient  in  law.  But  in 
this  case  the  evidence  extended  to  both  parties,  and  was 
therefore  legally  admitted  to  the  determination  of  the 
jury  as  to  its  sufficiency  in  fact,  to  establish  a  partnership 
between  them. 

2.  It  is  contended  that  the  court  erred  in  giving  the 
instruction  that  the  fact  of  their  having  conducted  the 
smelting  business  together  would  amount  to  prima  facie 
evidence  of  the  co-partnership.  This  instruction  would 
have  been  more  consonant  with  our  statute  and  the  practice 
of  our  courts  if  given  in  more  qualified  terms,  in  relation  to 
the  fact  of  their  being  together  in  that  business.  But  still 
the  charge  does  not  assume  that  fact  to  be  proved.  It 
remained  an  open  question  to  be  determined  by  the  jury. 
The  instruction  virtually  directed  them  that  if  they  con- 
cluded that  fact  to  be  established,  it  would  amount  to 
j)rima  facie  evidence  of  a  partnership.  The  question  then 
follows.  Is  that  a  correct  conclusion  in  law  ?     Would  such 


370  SUPREME  COURT  CASES, 

McMullan  v.  Mackenzie. 

joint  business  transactions  amount  to  prima  facie  evidence 
of  partnersliip,  and  place  the  07ius  of  disproving  it  ujjon 
the  defendants  ?  Under  our  statute,  in  order  to  recover  on 
a  note  executed  by  an  association  of  individuals,  it  is  only 
necessary  to  adduce  proof  sufficient  to  show  their  partner- 
ship, name,  and  style.  Rev.  Stat.,  454,  §  9.  This  fact  is 
sufficiently  proven  by  adducing  the  note  to  show  in  what 
style  they  executed  it,  with  the  additional  proof  that  at  or 
about  the  time  of  its  execution  they  were  doing  business 
together  as  partners.  Besides,  our  statute  considers  the 
signatures  to  all  promissory  notes  as  ^^  prima  facie  evi- 
dence of  their  execution,"  and  the  party  denying  the  same 
is  required  to  do  so  under  oath.  Rev.  Stat.,  p.  455,  §  10. 
In  this  case  the  defendants  below  did  not  so  deny  the 
execution  of  the  note,  nor  did  either  of  them  deny  being  a 
party  thereto.  This  state  of  facts  under  our  statute  aifords 
strong  presumption  of  the  existence  and  style  of  the  co- 
partnership, and  should  not,  we  think,  require  as  strong 
prima  facie  proof  as  would  be  necessary  in  the  absence 
of  such  statutory  provisions.  But  upon  general  principles 
it  is  well  settled  at  this  day,  that  in  order  to  charge  part- 
ners, strictness  of  proof  of  the  partnership  is  not  necessary. 
CoUyer  on  Partnership,  §  769.  Upon  this  point  Green- 
leaf  remarks  that  "the  facts  being  less  known  to  the 
plaintiff,  it  is  sufficient  for  him  to  prove  that  they  (the 
defendants)  have  acted  as  partners,  and  by  their  habit  and 
course  of  dealings,  conduct  and  declarations,  they  have 
induced  those  with  whom  they  have  dealt  to  consider  them 
as  partners."  Greenl.  Ev.,  §  483.  Hence,  says  Colly er, 
if  it  appear  that  two  persons  have  in  many  instances 
traded  jointly,  that  will  \)Q  prima  facie  evidence  of  a  gen- 
eral partnership.     Col.  on  Part.,  §  769. 

In  Forbes  v.  Davidson,  11  Vt.,  660,  where  the  plaintiffs 
proved  that  they  conducted  business  publicly  as  partners^ 
it  was  held  to  be  prima  facie  evidence  that  they  were 
such,  as  well  between  themselves  as  to  third  persons. 
If  such  proof  amounts  to  prima  facie  evidence  of  a  part- 
nership in  behalf  of  plaintiffs,  in  whom  more  strictness  of 


1 


DUBUQUE,  JULY,  1849.  371 

McMullan  v.  Mackenzie. 

proof  is  required,  it  must  more  obviously  amount  to  such 
evidence  in  its  application  to  defendants. 

Under  these  authorities  and  those  sections  of  statute  to 
which  we  have  referred,  we  think  the  charge  of  the  court 
was  substantially  correct. 

But  it  is  contended  that  in  order  to  attach  liability  to 
Price,  who  is  not  named  in  the  note,  there  should  be  some 
l^roof  to  show  that  it  was  given  for  something  connected 
with  the  business  of  smelting,  in  which  the  defendants 
were  jointly  engaged.  This  point  is  not  properly  raised 
upon  the  record  in  the  case,  but  as  it  appears  to  have  been 
somewhat  relied  upon  by  counsel,  we  will  decide  upon  it. 

The  fact  that  the  note  was  given  in  the  name  of  the  firm 
is  of  itself  presumptive  evidence  that  it  was  given  for  a 
valuable  consideration  furnished  to  the  co-partnership,  and 
the  onus  prohandi  lies  upon  the  party  seeking  to  avoid 
the  note,  to  show  that  it  was  given  for  things  not  relating 
to  or  affecting  the  partnership.  Had  the  party  objected 
that  the  note  was  given  in  payment  of  the  individual  debt 
of  his  co-partner,  or  for  money  which  had  never  been 
brought  into  the  partnership  business,  he  should  have 
proved  the  fact.  In  this  case  there  was  no  such  objection 
raised,  or  proof  adduced. 

Both  in  legal  and  commercial  contemplation,  the  note 
of  a  firm  is  deemed  prima  facie  to  have  been  given  in 
the  fau'  and  legitimate  course  of  the  partnership  business. 
Doty  V.  Bates,  11  John.,  544.  In  Whitaker  v.  Brown, 
16  Wend.,  507,  the  principle  is  broadly  asserted  by  Chan- 
cellor Walworth,  that  a  note  given  by  one  partner  in  the 
name  of  the  firm,  is  of  itself  presumptive  evidence  of 
the  existence  of  a  partnership  debt,  as  each  partner  has  a 
general  authority  to  contract  liabilities  in  the  transactions 
of  the  firm.  Thus  viewing  the  points  raised  in  this  case, 
we  can  see  no  error  in  the  proceedings  of  the  district  court. 

Judgment  affirmed. 

P.  Smith,  for  plaintiffs  in  error. 

T.  Bams,  for  defendant. 


372  SUPREME  COURT  CASES, 


Fulweiler  v.  Singer. 


FULWEILEK  v.  SINGER. 

Pleas,  averring  that  one  of  two  payees  of  a  note,  became  bankrupt  after  the 
note  was  made  and  before  it  was  indorsed  to  the  plaintiff,  arc  defective, 
unless  they  aver  that  the  party  who  indorsed  the  note  was  not  authorized 
to  do  so  ;  that  the  note  was  or  should  have  been  set  forth  in  the  bankrupt's 
inventory  of  assets ;  and  that  the  note  was  so  held  as  to  be  vested  by  virtue 
of  the  decree,  in  the  assignee  of  the  bankrupt,  or  that  he  otherwise  acquired 
an  interest  or  control  over  the  note. 

Erkor  to  Dubuque  District  Court. 

Opinion  hy  Greene,  J.  Enion  Singer  sued  Abraham 
Fulweiler  in  assumpsit,  on  a  promissory  note  executed 
August  6, 1838,  and  made  payable  to  Singer  and  Const,  and 
by  tliem  indorsed  to  the  plaintiff.  The  defendant  pleaded 
non-assumpsit  in  the  usual  form,  and  several  special  pleas 
averring  in  general  terms  :  1.  That  Const,  the  assignee  of 
said  note,  became  a  bankrupt  after  it  was  made,  and  before 
it  was  assigned  to  the  plaintiff;  2.  That  he  became  a 
bankrupt  in  Ohio,  August  19,  1841;  and  3.  By  an 
amended  plea,  that  said  Const  became  such  bankrupt 
according  to  the  true  intent  and  meaning  of  an  act  of 
Congress,  passed  August  19,  1841,  and  that  he  was  so 
declared  by  the  district  court  of  the  United  States  for  the 
state  of  Ohio,  and  that  said  court  ajjpoiuted  an  assignee 
for  the  said  Const,  who  was  entitled  to  said  note  at  the 
time  it  was  assigned  to  the  plaintiff.  A  demurrer  to  the 
three  special  pleas  was  sustained.  The  case  was  then 
submitted  to  the  court  upon  the  general  issue,  and  judg- 
ment rendered  upon  the  note  in  favor  of  the  plaintiff. 

It  is  now  contended,  that  the  court  erred  in  sustaining 
the  demurrer  to  the  three  sjiecial  pleas.  In  this  we  can 
see  no  error,  as  those  j^leas  appear  to  be  defective,  not 
only  in  form,  bnt  in  substance.  Upon  the  face  of  the 
l^apers  the  note  appears  to  have  been  regularly  indorsed  to 
the  present  holder,  and  there  is  no  specific  allegation  in 
either  plea  that  the  indorsement  was  not  made  by  a  party 
duly  authorized  to  assign  the  same  ;  they  contain  no  aver- 


DUBUQUE,  JULY,  1849.  373 

Strawser  v.  Johnson. 

ment  that  the  note,  or  the  bankrupt's  interest  in  the  note, 
was  or  should  have  been  set  forth  in  his  inventory  of  pro- 
perty rights  and  credits  ;  nor  that  the  note  was  so  held  as 
to  be  vested  by  force  of  the  decree,  and  by  operation  of 
law,  in  the  assignee  of  such  bankrupt,  or  that  he  otherwise 
acquired  any  legal  interest  or  control  over  the  note  before 
the  indorsement ;  nor  does  either  of  said  pleas  give  the 
name  of  the  assignee  in  bankruptcy.  In  these  particulars 
we  cannot  but  regard  the  pleas  as  substantially  defective, 
and  therefore  conclude  that  the  demurrer  was  properly 
sustained  by  the  court  below. 

Judgment  affii-med. 

Wilson  and  Smith,  for  plaintiff  in  error. 

Davis  and  Bissell,  for  defendant. 


>  •  *  •  f 


STRAWSER  V.  JOHNSON. 

A  general  plea  that  a  note  was  obtained  by  fraud  and  circmnTention  ii 
good. 

Ekror  to  Dubuque  District  Court. 

Opinion  by  Greene,  J.  This  was  an  action  of  assump- 
sit commenced  by  William  L.  Johnson  against  George 
Strawser,  on  two  promissory  notes.  Among  other  things, 
the  defendant  pleaded  that  the  notes  were  obtained  from 
him  by  fraud  and  circumvention.  A  demurrer  to  this 
plea  was  sustained  by  the  court  below,  and  this  ruling  is 
the  only  question  presented  for  adjudication. 

It  has  already  been  determined  by  this  court  that  a 
general  plea  of  fraud,  under  our  statute,  in  an  action  on 
a  promissory  note  is  good ;  Hildreth  v.  Tomlinson,  ante, 
360 ;  Hampton  v.  Pearce,  Morris,  489.  No  good  reason 
has  been  urged  for  departing  from  a  practice  which  has 


374  SUPREME  COURT  CASES, 

Chapman  v.  Morgan. 

been  uniformly  recognized  by  this  court  in  such  actions. 
The  charge  of  fraud,  though  general  in  its  character,  has 
a  sj^ecial  application  to  the  obtaining  of  the  note. 
Although  the  charge  is  general,  it  is  still  upon  an  object 
so  definite,  upon  a  transaction  so  specific,  that  the  nature 
of  the  fraud  cannot  be  mistaken.  Ordinarily  it  is  a  safer 
practice  to  make  special  allegations  of  fraud  in  pleadings, 
but  in  those  cases  where  a  general  averment  of  it  is  made 
upon  an  act  so  certain  and  detached  from  other  transac- 
tions as  to  render  the  subject  matter  of  the  fraud  obvious, 
we  think  no  good  reason  can  be  U2*ged  against  the  suffi- 
ciency of  such  averment.  Davis  v.  Tilcston,  6  Howard, 
U.  S.,  120  ;  Barber  v.  Kerr,  3  Barb.,  149.  The  reason  for 
this  rule  is,  we  think,  alike  applicable  to  law  and  equity 
pleading. 

Judgment  reversed. 

Wilson  and  Smith,  for  plaintiff  in  error. 

B.  M.  Samuels  and  Wm.  Y.  Lovell,  for  defendant. 


CHAPMAN  V.   MORGAN"  et  al 

The  action  of  trespass  quare  clausum  frcgit  is  local,  and  can  only  be  enter- 
tained by  a  justice  of  the  county  in  which  the  land  is  situated. 

Appearance  will  not  confer  jurisdiction  over  parties  not  residing  within  the 
jurisdiction  of  the  court,  nor  subject  to  its  process. 

Consent  of  a  party  cannot  confer  a  greater  authority  upon  a  conrt  than  the 
law  affords. 

The  district  courts  iiave  jurisdiction  over  all  civil  and  criminal  matters 
arising  in  their  respective  districts. 

Agreed  Case  from  Clixton  District  Court. 

Opinion  by  Greene,  J.  Trespass  quare  clausum  /regit 
commenced  before  a  justice  of  the  i)eace  of  Clinton  county, 
against  Morgan  uiid  Hall,  who  were,  when  the  trespass  was 


DUBUQUE,  JULY,  1849.  375 

Chapman  v.  Morgan. 

committed  and  the  suit  commenced,  residents  of  Scott 
county.  After  a  trial  before  the  justice  the  case  was  taken 
to  the  district  court  by  appeal,  and  was  on  motion  dis- 
missed, because  the  justice  had  no  jurisdiction  over  the 
defendants  as  citizens  of  another  county. 

As  an  objection  to  the  decision,  it  is  contended  that 
this  is  a  local  action,  and  should  have  been  commenced  in 
the  county  where  the  land  is  situated.  The  correctness  of 
this  position  will  not  be  controverted,  nor  would  the  right 
of  a  justice  of  the  peace  to  try  in  such  an  action  defendants 
who  are  householders  and  reside  without  the  county, 
if  served  with  process  within  its  limits,  be  questioned,  if 
the  statute  did  not  expressly  provide  to  the  contrary.  It 
provides  "  that  in  no  case  shall  any  civil  action,  other  than 
by  attachment,  against  any  defendant  who  is  a  hoii^;eholder 
in  this  state,  be  commenced  in  any  county  other  than 
the  one  in  which  such  defendant  resides."  Laws  of  1847, 
p.  90,  §  6.  This  statute  obviously  limits  the  jurisdiction  of 
justices  in  such  suits  to  defendants  who  are  citizens  of  the 
county  in  which  the  justice  is  authorized  to  act,  and  de- 
prives him  of  all  authority  over  non-resident  citizens.  But 
it  is  contended  that  by  appearing  and  going  to  trial,  the 
defendants  waived  all  objection  to  the  want  of  jurisdic- 
tion in  the  justice.  If  there  had  been  any  defect  or  irregu- 
larity in  the  process,  and  service,  or  any  other  method 
provided  by  law  for  bringing  the  parties  into  court,  that 
defect  might  have  been  waived  by  appearance,  but  when 
no  process,  however  regularly  executed,  can  bring  a  party 
under  the  authority  of  the  court,  the  appearance  of  the 
defendants  cannot  confer  the  authority.  In  a  case  like  the 
present,  where  a  justice  is  excluded  by  positive  enactment 
from  the  exercise  of  jurisdiction,  it  cannot  be  conferred 
by  an  implied  agi-eement,  inferred  from  the  appearance  of 
the  parties.  Such  appearance  will  not  confer  jurisdiction 
when  it  could  not  be  exercised  by  process.  As  a  general 
rule,  consent  cannot  confer  upon  courts  a  greater  power 
than  the  law  affords.  Parties  cannot  by  agreement  give 
jurisdiction  to  a  court  which  could  not  be  exercised  by 


876  SUPREME  COURT  CASES, 

Shaw  V.  Gordon. 

virtue  of  legal  process.  The  authorities  upon  this  point 
are  uniform.  Although  this  doctrine  is  ordinarily  confined 
to  the  subject  matter  of  a  suit,  we  think  it  may  with 
great  propriety  he  applied  to  parties  when  they  are  by 
statute  excluded  from  the  cognizance  of  the  court,  as  in 
this  case. 

The  position  assumed  by  counsel,  that  the  plaintiff  would 
be  remediless  if  this  action  could  not  be  entertained  before 
a  justice  of  the  peace,  is  not  correct.  He  was  clearly 
entitled  to  his  action  in  the  district  court.  Under  the  con- 
stitution, the  district  courts  "  have  jurisdiction  in  all  civil 
and  criminal  matters  arising  in  their  respective  districts." 
All  statutes  to  the  contrary  must  necessarily  yield  to  this 
paramount  law.  Hence  the  general  jurisdiction  which  the 
district  court  possesses  over  all  civil  matters  must  neces- 
sarily include  a  full  concurrent  jurisdiction  with  justices 
of  the  peace.  It  therefore  follows  that  the  present  action 
might  have  been  entertained  by  that  court,  and  as  the 
statutory  limitation  in  relation  to  non-resident  defendants 
only  attaches  to  justices'  courts,  that  difficulty  would  have 
been  removed.  We  conclude,  then,  that  the  court  below 
did  not  err  in  dismissing  the  appeal. 

Judgment  affirmed. 
W.  E.  Leffingmell,  for  plaintiff  in  error. 
P.  Smith,  for  defendants. 


SHAW  V.  GORDON". 

In  an  action  of  unlawful  detainer,  a  complaint  is  good  whicb  contains  all  the 

averments  of  facts  required  by  statute. 
After  a  verdict  and  judgment  have  been  rendered,  without  objection  to  the 
complaint,  a  court  sliould  not  entertain  merely  formal  defects. 


DUBUQUE,  JULY,  1849.  377 


Shaw  V.  Gordon. 


Error  to  Jackson  District  Court. 

Opinion  by  Greene,  J.  Shaw  filed  his  written  com- 
plaint before  a  justice  of  the  peace,  in  an  action  of  un- 
lawful detainer.  The  defendant  appeared  and  submitted 
to  trial  without  objection  to  the  form  of  the  complaint. 
Verdict  and  judgment  for  the  plaintiff.  The  defendant 
appealed  to  the  district  court,  and  there  moved  to  quash 
the  proceedings,  on  the  ground  that  the  complaint  does  not 
show  a  cause  of  action  cognizable  before  a  justice  of  the 
peace.  This  motion  was  sustained  by  the  court,  and  the 
suit  dismissed  at  the  cost  of  plaintiff. 

The  only  question  submitted  to  our  determination  is, 
Did  the  court  below  err  in  dismissing  the  suit  ?  The  de- 
cision of  this  question  must  be  predicated  exclusively  upon 
the  sufficiency  of  the  complaint  under  our  statute. 

The  complaint  substantially  avers  John  Shaw  to  be  law- 
fully seized  in  fee  of  the  land  therein  described ;  that  he 
is  justly  entitled  to  the  possession  thereof ;  and  that  said 
premises  are  now  unlawfully  detained  from  his  possession 
by  Charles  Gordon,  who  resides  thereon,  and  refuses  to 
deliver  up  the  same  to  complainant,  although  legally 
notified  to  do  so.  The  complaint  is  dated  June  9,  1847, 
and  signed,  "  John  Shaw." 

Unlawful  detainer  is  defined  by  Rev.  Stat.,  345,  Art.  12, 
§  3.  If  our  statute  recognized  no  other  description  of  the 
offence  than  that  set  forth  in  this  section,  then  we  could 
but  determine  the  comi3laint  defective.  Unquestionably, 
to  enable  the  plaintiff  to  recover,  he  must  prove  the  con 
stituents  of  unlawful  detainer  as  designated  by  that  sec- 
tion ;  but  that  they  need  not  be  set  forth  in  the  complaint 
is  rendered  conclusive  by  reference  to  §  6  of  the  same 
article.  It  provides  that,  "  when  a  complaint  to  any 
justice  of  the  peace  shall  be  made  in  writing,  and  signed 
by  the  party  aggrieved,  his  agent  or  attorney,  specifying 
the  lands,  tenements,  or  other  possessions  so  forcibly  en- 
tered and  detained,  or  so  unlawfully  detained  over,  and 
Vol.  II.  25 


378  SUPREME  COURT  CASES, 

Shaw  V.  Gordon. 

by  whom,  and  when  done,  it  shall  be  the  duty  of  the  jus- 
tice of  the  peace  to  issue  his  summons,"  &c.  This  section 
sets  forth  the  requisites  of  a  complaint,  in  order  to  confer 
jurisdiction  and  power  upon  the  justice  ;  and  when  made 
conformable  to  it,  we  must  consider  it  substantially  good, 
though  it  should  not  characterize  the  holding  over  in  the 
language  descriptive  of  the  offence  in  the  preceding  sec- 
tion. 

By  reference,  it  will  be  seen  that  the  complaint  in  this 
case  specifies  all  the  facts  required  by  the  section  which 
regulates  it;  and  hence  we  are  of  opinion  that  the  court 
erred  in  sustaining  the  motion  to  dismiss  the  suit. 

Had  the  complaint  been  deemed  insufficient  in  form,  it 
was  still  erroneous  for  the  court  to  entertain  the  motion 
at  that  advanced  stage  in  the  proceeding.  After  a  verdict 
and  judgment  before  the  justice  without  objection  to  the 
complaint,  the  district  court  should  not  have  inquired  into 
its  defective  form.  Wright  v.  Lyle,  4  Alabama,  112; 
Hilliard  v.  Carr,  6  ib.,  557;  Snoddy  v.  Watt^  9  ih.^  611; 
Pearce  v.  Swan,  1  Scam.,  268. 

The  position  assumed  by  counsel  for  the  defendant  in 
error  cannot  be  controverted,  that  courts  of  inferior  juris- 
diction must  act  within  the  scope  of  their  authority  as 
defined  by  law,  and  if  the  face  of  their  proceedings  shows 
that  they  have  transcended  that  defined  authority,  they 
become  coram  non  judice,  and  void ;  but  we  cannot  see 
the  application  of  this  ever  recognized  principle  to  the 
question  at  bar.  The  only  inquiry  legitimately  before  us 
is,  whether  the  complaint  is  substantially  good  under  our 
statute.  The  questions  raised  in  relation  to  the  justice 
trying  title  to  lands  and  as  to  his  proceeding  in  ejectment, 
were  not  passed  upon  by  the  district  court,  nor  are  they 
by  the  record  made  the  j)roper  subjects  for  adjudication  in 
this  court.  The  subject  matter  of  the  complaint  is  by 
statute  made  cognizable  before  a  justice,  and  we  may 
as.>nme,  as  the  question  is  raised,  that  we  can  see  nothing 
ill  his  proceedings  thereon  which  materially  overreaches 
the  authoritv  conferred. 


DUBUQUE,  JULY,  1849.  379 


Smith  V.  Bissell. 


The  case  of  Wells  v.  Ilogan^  Breese  B,.,  264,  is  urged 
with  much  confidence  to  show  that  the  complaint  before 
us  is  insufficient.  Had  this  decision  been  made  upon  a 
statute  like  ours,  defining  what  shall  constitute  the  sub- 
stance of  the  complaint,  we  should  have  had  more  difii- 
culty  in  arriving  at  our  present  conclusion  in  this  case. 
Though  the  statute  of  Illinois  is  substantially  similar  to 
that  of  Iowa  in  defining  "  unlawful  detainer,"  still  it  does 
not  in  like  manner  direct  the  ingredients  or  material  re- 
quisites of  the  complaint ;  and  hence  it  was  properly  held 
in  Welh  v.  Hogan,  that  the  complaint  should  conform  to 
the  statute  and  set  out  the  detainer  or  holding  over  as  the 
same  is  defined  by  law,  in  order  to  bring  the  subject  mat- 
ter within  the  jurisdifction  of  the  justice.  We  have  already 
noticed  that  our  statute  authorizes  the  justice  to  entertain 
jurisdiction  by  issuing  his  summons,  when  a  complaint  is 
filed  with  him  containing  the  prescribed  requisites ;  and 
that  the  complaint  before  us  contains  at  least  the  sub- 
stantial averments  required. 

Judgment  reversed. 


'■&' 


P.  Smith,  for  plaintiff  in  error, 
L,  Clarkf  for  defendant. 


SMITH  V.  BISSELL. 

A  note  \&  prima  facie  evidence  of  a  settlement  between  the  parties  to  it,  so 
as  to  exclude  items  of  set-oif  charged  prior  to  the  date  of  the  note,  unless 
the  defendant  first  prove,  or  offer  to  prove,  that  such  items  were  not  in- 
cluded in  the  settlement  upon  which  the  note  was  given. 

A  judgment  cannot  summarily  be  rendered  against  a  surety  in  a  case  taken  to 
the  district  couit  by  certiorari,  as  it  may  be  in  cases  taken  up  by  appeal. 


380  SUPREME  COURT  CASES, 


Smith  V.  Bissell. 


Error  to  Dubuque  District  Court. 

Opinion  by  Greene,  J.  This  action  was  commenced 
before  a  justice  of  the  peace,  on  a  promissory  note  made 
bj^  Seneca  Smith  to  E.  M.  Bissell,  and  a  judgment  ren- 
dered for  the  amount  due  on  the  note.  Upon  trial  before 
the  justice,  the  defendant  offered  to  prove  items  of  set-off, 
which  bore  date  prior  to  that  of  the  note.  To  this  evidence 
objections  were  made  by  the  plaintiff,  and  sustained  by 
the  justice.  Assuming  this  ruling  to  be  erroneous,  the 
defendant  took  the  case  to  the  district  court  by  certiorari^ 
and  there  the  decision  of  the  justice  was  affirmed,  and  a 
judgment  rendered  against  the  plaintiff  in  error,  and  his 
surety  in  the  certiorari  recognizance. 

It  is  now  contended  that  the  court  erred :  1.  In  affirm- 
ing the  judgment  of  the  justice;  and  2.  In  rendering 
judgment  against  the  surety. 

Upon  the  first  point  the  question  is  presented.  Does  the 
note  amount  to  prima  facie  evidence  of  a  settlement  be- 
tween the  parties,  so  as  to  exclude  items  of  set-off  charged 
prior  to  the  date  of  the  note,  unless  the  defendant  first 
prove,  or  offer  to  prove,  that  such  items  were  not  included 
or  satisfied  in  the  arrangement  or  settlement  upon  which 
the  note  was  given  ? 

It  is  hardly  consistent  with  the  ordinary  dealings  be- 
tween men,  nor  with  the  more  systematic  transactions  of 
commercial  life,  to  presume  that  a  man  would  be  likely  to 
give  his  note  to  a  person  who  was  at  the  same  time  in- 
debted to  him.  Such  a  presumption  is  not  only  inconsis- 
tent with  the  general  course  of  business,  but  is  repugnant 
to  the  language  of  the  note,  which  acknowledges  a  given 
sum  to  be  due  from  the  maker  to  the  payee.  The  prevail- 
ing office  of  a  note  is  to  show  a  liquidation  between  the 
parties,  a  settlement  of  mutual  accounts,  or  an  adjustment 
of  a  demand,  and  to  create  an  evidence  of  the  balance  or 
the  amount  due  from  one  party  to  the  other.  This  leading 
and  salutary  object  of  a  note  would  be  greatly  impaired. 


I 


DUBUQUE,  JULY,   1849.         '         381 

Smith  V.  Bissell. 

if  it  should  not  in  all  cases  be  adjudged  at  least  pi^ima 
facie  evidence  of  the  indebtedness  therein  expressed ;  and 
that  all  demands  held  bj  the  payer  against  the  payee 
were  satisfied  in  the  arrangement  upon  which  the  note 
was  executed.  This  principle  was  recognized  in  Gould  v. 
Chasey  16  John.,  226,  which  was  an  action  on  a  note  dated 
December  28,  1813,  for  $25.  The  defendant  offered  to 
set-off  a  note  given  by  the  plaintiff  to  one  S.,  or  bearer, 
for  |1.33,  dated  in  1810,  and  also  a  memorandum  in  his 
book  of  accounts,  dated  May  27,  1811,  in  which  the  plain- 
tiff admitted  that  he  was  then  owing  the  defendant  the 
sum  of  $63.48.  It  was  held  by  the  court  that,  in  the  ab- 
sence of  all  explanation,  the  giving  of  the  note  wasjorma 
facie  evidence  that  those  demands  had  been  satisfied. 

In  Eaves  v.  Henderson,  17  Wend.,  191,  a  set-off  was 
offered  against  the  note ;  and  in  the  set-off  two  items  were 
included  which  had  been  delivered  previous  to  the  date  of 
the  note.  It  was  held  that  evidence  in  relation  to  those  two 
items,  either  as  a  set-off  or  payment,  was  not  admissible, 
because  a  contradiction  of  the  amount  due,  as  expressed 
in  the  note.  And  it  is  doubted  in  that  case,  whether  even 
an  agreement  to  set-off  precedent  debts  can  operate  as  a 
payment,  satisfaction  or  extinguishment  of  the  note. 

Another  case  in  point  is  Van  Bur  en  v.  Wells,  19  Wend., 
203,  in  which  a  receipt  for  oats,  dated  anterior  to  a  settle- 
ment between  the  parties,  was  pronounced  to  be  irrelevant, 
as  having  prima  facie  been  merged  in  the  settlement.  As 
a  reason  for  this  conclusion,  the  court  say  that  the  receipt 
was  irrelevant  because  no  evidence  was  offered  to  show 
that  it  was  omitted  in  the  settlement. 

Influenced  by  the  foregoing  views  and  authorities,  we 
conclude  that  the  note  in  the  case  at  bar  was  presumptive 
evidence  of  a  settlement  between  the  parties,  which  in- 
cluded the  items  of  set-off  dated  anterior  to  the  note,  and 
that  evidence  in  relation  to  those  items  was  prima  facie 
irrelevant,  and  therefore  inadmissible.  The  defendant 
might  have  rendered  proof  of  those  items  relevant,  by  pro- 
posing to  show  that  they  were  not  included  in  the  settle- 


382  SUPREME  COURT  CASES, 

Smith  V.  Bissell. 

ment.  A  fact  so  isolated  and  detaclied  from  a  legitimate 
set-off,  can  only  become  admissible  by  proving,  or  propos- 
ing to  prove,  some  additional  fact  sliowing  the  legal  con- 
nection and  relevancy  of  that  wliicli  is  offered.  The  prin- 
ciple appears  to  be  well  supported  by  authorities,  that 
evidence  apparently  irrelevant  to  the  matter  in  issue  nuiy 
be  lawfully  rejected,  unless  the  party  offering  it  show  how 
it  can  be  made  relevant  by  reference  to  facts  already  in 
evidence,  or  which  he  proposes  to  establish  by  evidence  to 
be  adduced.  People  \.  Gening^  11  Wend.,  21 ;  Van  Buren 
V.  Welh,  19  ih.,  203,  205;  Winlock  v.  Hardy,  4  Litt., 
272;  Harris  v.  Payne,  5  ib.,  105,  108;  Clark  y.  Beach, 
6  Conn.,  142;  Crenshaw  v.  Davenport,  6  Ala.,  390,  392; 
Tuggle  v.  Barclay,  ib.,  407,  410;  Weidler  v.  Farmers'' 
Bank,  11  Serg.  &  Rawle,  134,  139,  140. 

From  these  authorities,  the  conclusion  necessarily  fol- 
lows, that  in  nisi  prius  practice,  if  evidence  appears  to  be 
irrelevant  at  the  time  it  is  offered,  it  is  not  error  to  reject 
it  merely  because  other  evidence  might  be  given  in  course 
of  the  trial,  by  which  both  connected  might  become  rele- 
vant. Still  a  court  may  let  in  such  proof  in  the  first  in- 
stance ;  and  if,  after  all  is  heard,  it  has  no  tendency  to 
prove  the  issue,  it  may  be  excluded.  But  it  appears  to  be 
the  better  practice,  and  sanctioned  by  high  authority,  to 
repudiate  the  irrelevant  testimony  in  the  fii'st  instance, 
unless  the  party  who  offers  it  proposes  to  prove  other  facts 
at  the  proper  time,  which  would  render  the  evidence  of 
all  the  facts  admissible  to  support  the  issue. 

We  think,  then,  that  the  court  below  very  correctly 
affirmed  the  decision  of  the  justice,  and  properly  rendered 
judgment  against  the  plaintiff  in  error. 

2.  But  the  court  obviously  went  too  far  in  entering 
judgment  against  the  surety  in  the  certiorari  bond.  A 
proceeding  so  summary  and  extraordinary  can  only  be 
authorized  by  express  statutory  provision.  Although  this 
practice  is  j)rovided  for  in  appeal  cases,  (Rev.  Stat.,  336, 
§  1 6,)  it  is  not  authorized  against  sureties  in  those  cases 
which  are  renlo^•ed  to  the  district  court  by  certiorari. 


DUBUQUE,  JULY,  1849.  383 

Riggs  r.  Bagley. 

The  judgment  of  the  court  below,  so  far  as  it  affects  the 
sm-ety,  will  therefore  be  reversed,  but  in  all  other  particu- 
lars affirmed  at  the  cost  of  the  defendant  in  error. 

P.  S-mit/i,  for  jalaintiff  in  eiror. 

L.  Clarkj  for  defendant. 


->♦»•< 


KIGGS  V.  BAGLEY. 

In  a  writ  under  seal,  the  seal  should  be  named  or  referred  to  in  the  attestation. 

Error  to  Jackson  District  Court. 

Opinion  by  Greene,  J.  This  case  was  commenced  in 
the  district  court,  and  on  motion  the  writ  was  quashed  on 
the  ground  of  having  been  insufficiently  attested. 

The  objection  presented  to  the  writ  consists  in  the  fact 
that  there  is  no  reference  in  it,  or  in  its  attestation,  to  the 
seal  of  the  court.     It  concludes  in  these  words  : — 

"  Witness,   Frederick   Scarborough,   clerk  of  our  said 
court  at  Belleview,  this  3d  day  of  May,  a.d.  1849. 
(Attest)  Fred.  Scarborough, 

Clerk  of  District  Court,  Jackson  Co.,  lowaj^ 

The  seal  of  the  court,  without  being  in  any  way  named 
or  referred  to,  is  inipressed  upon  a  corner  of  the  writ. 

It  is  contended  that  the  court  erred  in  thus  quashing 
the  writ,  and  dismissing  the  suit ;  that  as  courts  of  gene- 
ral jurisdiction  are  bound  to  know  and  recognize  their  own 
seals  by  the  impression  from  them,  there  is  no  necessity 
for  naming  or  referring  to  them  in  any  portion  of  the  in- 
strument to  which  they  are  attached. 

The  defect  in  the  writ  may  be  regarded  as  technical, 
merely  formal ;  as  one  which  might  properly  have  been 
conditidnally  amended  on  motion  in  the  court  below;  but 


384  SUPREME  COURT  CASES, 

Ilig-gs  V.  Bagley. 

still  it  is  a  defect,  an  omission  in  the  established  form  of 
a  writ,  which  should  not  be  overlooked. 

There  is  perhaps  no  form  of  judicial  proceeding-  that 
can  be  traced  to  greater  antiquity  than  that  of  referring 
to  the  seal  in  the  attestation  of  sealed  instruments.  And 
this  form  has  continuously  prevailed,  especially  in  authen- 
ticating all  public  precepts  and  judicial  process  under 
seal. 

We  are  not  tenacious  to  this  form,  merely  because  it 
bears  a  vestige  of  olden  times,  nor  merely  because  it  is 
generally  recognized  by  courts  of  record ;  but  we  adhere 
to  it  especially  because  it  contains  marks  of  propriety  and 
utility. 

It  is  true,  as  is  m-ged,  that  the  seal  of  the  district  court 
proves  itself,  but  it  does  not  of  itself  prove  that  it  was 
affixed  by  the  proper  officer,  or  by  authority.  The  clerk 
is  the  keeper  of  the  seal ;  he  alone  is  authorized  to  use  it ; 
and  upon  affixing  the  seal  officially  to  any  process,  he 
should  attest  the  fact  over  his  own  signature. 

There  is,  we  conclude,  a  propriety  in  this  form  of 
attestation,  because  it  uniformly  prevails,  and  is  looked 
for  in  every  genuine  writ;  and  there  is  a  utility  in  it, 
because  it  is  one  of  the  safeguards  against  surreptitious 
authentications. 

Ministerial  officers  of  courts  are  too  much  inclined  to 
depart  from  established  forms  and  fixed  rules.  Innovation 
is  not  within  the  province  of  their  duties,  nor  can  they  be 
justified  by  us  in  any  deviation  from  forms  well  known, 
and  regulations  long  defined. 

Judgment  affirmed. 

Wilson  and  Smithy  for  plaintiff  in  error. 

Lovell  and  Samuels,  for  defendant. 


DUBUQUE,  JULY,  1849.  ;j«5 


Corriell  v.  Doolittle. 


CORRIELL  V.  DOOLITTLE. 

In  a  suit  commenced  by  attachment  a  general  judgment  was  rendered,  and 

upon  it  a  special  execution  issued,  on  whicii  the  property  attached  was  sold ; 

held  tiiat  tiie  sale  was  valid. 
Where  a  judgment  has  been  assigned,  it  is  not  necessary  to  make  the  assignee 

a  party  by  scire  facias,  to  enable  him  to  sue  out  an  execution  in  the  name 

of  the  party  wlio  recovered  judgment. 
Where  a  sheriflF's  return  of  an  execution  sale  does  not  show  that  notice  of 

the  sale  was  served   upon  execution  defendant,  it  will  not  be  presumed 

that  notice  was  not  given. 

Eeror  to  Dubuque  District  Court. 

Opinion  hy  Greene,  J.  Ejectment  by  Curtis  M.  Doolittle 
agaiust  W.  W.  Corriell,  for  lot  90  in  the  city  of  Dubuque. 
Plea  of  not  guilty.  Trial  by  the  court,  and  judgment  for 
the  plaintiff. 

Upon  the  trial,  the  plaintiff  offered  in  evidence  the 
record  of  a  judgment  rendered  in  the  district  court  of 
Dubuque  county,  November  18,  1841,  against  said  Corriell 
in  favor  of  Andrew  Keesecker,  for  the  sum  of  $493.92. 
Also  a  special  execution  and  sheriff's  deed  showing  a  sale 
to  him  of  the  lot  in  question,  under  said  judgment,  on  the 
4th  day  of  January,  1845.  In  connection  with  this  evi- 
dence the  following  facts  were  admitted  : — 1.  That  the 
judgment  had  been  assigned  by  Keesecker  to  Doolittle 
before  the  execution  was  issued  ;  2.  That  the  sheriff's 
returns  on  the  execution  were  regular,  witli  the  exception 
that  they  did  not  state  that  the  sheriff  gave  notice  in 
writing  to  the  defendant  in  execution,  or  leave  such  notice 
at  his  last  usual  place  of  abode,  as  required  by  Rev.  Stat., 
p.  633,  §  9  ;  3.  That  the  defendant  was  in  possession  of 
the  premises  at  the  commencement  of  the  suit.  The  case 
having  been  by  agreement  submitted  to  the  decision  of  the 
judge,  without  the  intervention  of  a  jury,  the  defendant 
objected  that  the  evidence  was  not  sufficient  to  entitle  the 
plaintiff  to  recover,  but  the  court  decided  otherwise,  and 
rendered  judgment  accordingly  in  favor  of  the  defendant 
in  error. 


386  SUPREME  COURT  CASES, 

Corriell  v.  Doolittle. 

Three  points  are  urged  in  this  court  to  show  that  the 
decision  below  was  erroneous. 

1.  That  the  judgment  was  general  upon  which  the  sale 
was  made,  and  a  special  execution  issued  thereon.  By 
the  record  it  appears  that  the  suit  upon  which  the  judg- 
ment was  rendered  had  been  commenced  by  attachment, 
and  that  although  the  court  rendered  a  general  judgment, 
the  execution  was  issued  pursuant  to  the  writ  of  attach- 
ment. To  have  been  strictly  regular  and  formal,  the 
judgment  should  have  ordered  a  special  execution  upon 
the  j)roperty  attached.  But  that  omission  in  the  form  of 
the  judgment  could  not  vacate  the  attachment  lien.  It 
ran  conjointly  into  the  judgment  and  execution  from  the 
date  of  the  attachment  levy,  and  we  think  the  special  exe- 
cution was  fully  authorized  by  that  levy  and  the  resulting 
lieu,  even  without  the  special  order  in  the  judgment. 
Again,  it  was  one  of  those  irregularities  in  form  which 
might  have  been  at  any  time  corrected  nunc  pro  tunc. 
The  record  in  the  case  affords  ample  data  for  such  correc- 
tion, had  the  objection  been  urged  at  the  proper  time, 
on  motion  to  set  aside  the  execution  or  levy  thereon, 
and  hence  we  cannot  regard  it  as  one  of  those  substantive 
defects  which  can  invalidate  a  title  acquired  under  a 
judicial  sale.  It  was  not  a  defect  which  could  result  in 
any  inconvenience  or  injury  to  the  execution  defendant, 
and  therefore  the  objection  should  not  prevail. 

The  form  of  the  executjon  is  unexceptionable.  Upon 
its  face  it  conferred  complete  authority  for  the  sale.  It 
recites  the  original  attachment  and  levy ;  describes  with 
precision  the  judgment  upon  which  it  issued,  and  directs 
a  sale  of  the  property  attached.  So  far  then  from  being 
a  void  execution,  we  cannot  regard  it  as  even  voidable, 
for  it  clearly  shows  and  follows  tiic  judgment  upon  which 
it  wns  founded.  The  order  to  sell  special  property  is  not 
only  authorized  by  the  nature  of  the  proceedings,  but 
also  by  the  general  and  nnlimited  order  that  an  execu- 
tion should  issue.  This  authority  for  a  general  execution 
necessarily  includes  a  warrant  for  one  of  a  more  limited 


DUBUQUE,  JULY,  1849.  387 

Cornell  v.  Doolittle. 

or  special  cliaracter,  as  tlie  minor  warrant  is  obviously 
comprised  under  the  greater. 

2.  Tliat  Doolittle  ought  to  have  been  made  a  party  to 
the  record  by  scire  facias  before  the  execution  was  issued, 
because  he  was  the  only  person  beneficially  interested  in 
the  judgment.  We  can  see  no  necessity  or  propriety  for 
such  a  proceeding.  The  mere  assignment  of  a  judgment 
can  have  no  tendency  to  impair  the  liability  of  the  judg- 
ment debtor,  nor  the  right  of  the  creditor  to  an  execution 
in  the  name  of  the  party  for  whom  the  judgment  was  ren- 
dered. The  only  change  that  an  assignment  can  effect  is, 
to  substitute  the  assignee  as  recipient  of  the  money  paid 
in  satisfaction  of  the  judgment.  The  assignment  can 
effect  no  change  in  the  parties  to  the  execution.  It  could 
only  issue  in  the  name  of  the  party  who  recovered  the 
judgment,  for  if  otherwise  issued,  the  execution  would  not 
be  following  the  judgment,  and  could  not  therefore  be 
warranted  by  it.  In  Hamilton  v.  Lyman,  9  Mass.,  14,  it 
was  held  that  where  one  of  two  or  more  judgment  credi- 
tors dies  after  judgment  and  before  execution,  that  the 
execution  should  issue  in  the  name  of  all  the  creditors, 
and  that  the  survivors  should  not  be  put  to  their  scire 

facias.  Indeed,  this  resort  to  a  scire  facias  appears  to  be 
necessary  only  to  revive  an  execution-lost  by  lapse  of  time, 
or  where  the  execution  is  to  issue  in  the  name  of  a  person 
not  a  party  to  the  record,  occasioned  by  the  Tnarriage, 
bankruptcy,  or  death  of  the  original  party,  so  as  to  substi- 
tute the  representative  of  such  party  as  a  privy  to  the 
judgment ;  but  no  authority  has  been  produced  in  support 
of  this  practice  in  a  case  like  the  present.  Such  a  pro- 
ceeding would  occasion  unnecessary  delay,  expense  and 
inconvenience,  without  any  resulting  benefit  or  security 
to  execution  defendants. 

3.  That  the  sherifl"  did  not  state  in  his  execution  returns 
that  he  gave  notice  in  writing  to  the  defendant  as  required 
by  the  "  valuation  law."  Rev.  Stat.,  p.  633,  §  9.  Section 
8  of  that  act  provides,  "  that  any  sheriff  or  other  officer 


388  SUPREME  COURT  CASES, 

Corriell  v.  Doolittle. 

levying  an  execution  upon  any  real  estate  shall,  previous 
to  otFering  the  same  for  sale,  give  at  least  four  weeks' 
notice  of  the  time  and  place  of  such  sale,  by  posting  up 
written  advertisements  thereof  in  four  of  the  most  public 
places  in  the  county  in  which  such  real  estate  may  be 
situated."  The  next  section,  after  pointing  out  the  duties 
of  the  officer  in  cases  where  the  property  taken  and  sold 
on  execution  should  not  sell  for  a  sum  sufficient  to  satisfy 
the  debt,  &c.,  provides  that  he  should  "make  retm-ns  of 
his  doings  thereon  as  in  other  cases  ;  and  in  all  cases,  in 
addition  to  the  above  notifications  of  such  sales,  the  officer 
shall  give  notice  in  writing  to  the  defendant  in  execution, 
or  leave  such  notice  at  his  last  or  usual  place  of  abode." 
It  is  admitted  that  the  returns  of  the  sheriff  were  full  and 
perfect  in  every  particular,  except  in  relation  to  the  above 
written  notice  upon  the  defendant.  This  special  notice 
was  required  in  all  cases,  and  without  it  the  sale  of  pro- 
perty belonging  to  an  execution  defendant  residing  within 
the  state  would  be  considered  at  least  irregular,  and  as 
between  original  parties  to  the  judgment  and  execution, 
would  doubtless  be  deemed  sufficient  to  invalidate  the 
sale.  But  the  validity  of  a  sale  under  such  an  irregu- 
larity need  not  be  considered  in  the  present  case,  either 
as  to  the  original  judgment  creditor,  or  as  to  his  assignee, 
nor  yet  as  to  third  parties  ;  for  we  cannot,  in  the  absence 
of  proof,  take  it  for  granted  that  legal  notice  was  not 
given.  The  mere  silence  of  the  sheriff's  returns  in  rela- 
tion to  that  special  notice  cannot  create  a  legal  presump- 
tion against  any  party  that  it  was  not  regularly  given. 
But  it  is  contended  that  it  should  expressly  appear  by  the 
returns  that  the  officer  gave  this  notice.  The  returns 
would  have  been  more  complete  if  that  fact  had  been 
stated  in  them  ;  still  we  cannot  regard  the  omission  as  an 
irregularity  which  can  impair  the  validity  of  the  sale. 
Humphreys  v.  Beeson,  1  Gr.  Greene,  199,  214. 

While  the  statute  directs  the  officer  to  make  return  of 
his  doings  in  other  particulars,  it  gives  no  such  direction 


I 


DUBUQUE,  JULY,  1849.  389 

Cornell  v.  Doolittle. 

in  relation  to  this  special  notice.  Hence  it  cannot  be  con- 
sidered as  the  omission  of  even  a  dh-ectory  duty  under  tlie 
statute. 

The  principle  is  generally  asserted  in  the  books,  that 
the  validity  of  a  judgment  sale  does  not  depend  upon  the 
regularity  of  the  sheriff's  returns ;  and  that  principle  has 
been  fully  adopted  by  this  court.  Humphreys  v.  Beeson, 
1  G.  Greene,  195,  215;  Hopping  v.  Burnam,  ante,  39. 

We  conclude,  then,  that  no  irregularities  are  disclosed 
in  this  case  which  can  be  considered  sufficient  to  impeach 
the  judgment  title  upon  which  the  defendant  in  error 
recovered  in  the  court  below. 

In  arriving  at  this  conclusion  we  freely  acquiesce  in  the 
position  assumed  by  counsel  for  the  plaintiff  in  error,  that 
when  the  party  for  whose  benefit  the  execution  was  issued 
becomes  the  purchaser,  he  should  be  held  accountable  for 
irregularities  which  would  not  effect  a  bona  fide  sale  to 
a  third  party.  But  we  think  that  the  uTegularities 
complained  of  in  this  case  should  not  prove  available 
even  against  the  original  judgment  creditor,  had  he 
purchased  the  land. 

Judgment  affirmed. 

P.  Smithy  for  plaintiff  in  error. 

S,  Hempstead^  for  defendant. 


CASES  m  LAW  AND  EQUHT, 


DETBBMINED  IN  THB 


SUPREME  COURT  OF  THE  STATE  OF  IOWA, 

BURLINGTON,  MAY  TERM,  A,D.  1850, 
In  the  Fourth  Year  of  tJie  State. 


present : 

Eon,  JOSEPH  WILLIAMS,  Chief  Justice. 
Hon.  JOHN  F.   KINNEY,  )    .    , 
HOK.  GEO.  GREENE,  Juanea. 


■>■•♦•< 


SPRINGER  V.  STEWART. 

In  an  action  upon  an  agreement  Avith  mutual  and  dependent  conditions,  the 
plaintiff  to  sustain  liis  demand  must  account  for  all  he  undertook  under 
the  agreement,  and  the  defendant,  to  sustain  his  set-off,  must  establish  each 
item  of  his  demand  by  proof. 

Error  to  Lee  District  Court. 

Opinion  by  Kinney,  J.  Springer  &  Co.  sued  Stewart 
in  an  action  of  assumpsit  on  an  account  for  work  and 
labor  done,  in  catting  and  packing  pork  for  defendant. 

To  this  demand  defendant  pleaded  a  set-off,  claiming 
damages  against  plaintiff  for  the  value  of  a  large  number  of 
hogs  delivered  by  divers  persons  for  Stewart  to  Springer, 
and  not  accounted  for  by  said  Sjjringer,  and  for  the  value 
of  a  large  amount  of  the  pork  cut  and  packed  by  Springer, 


BURLINGTON,  MAY,  1850.  391 

Springer  v.  Stewart. 

but  never  delivered  by  him  to  Stewart  as  per  contract, 
r.iid  for  not  accounting  for  a  large  quantity  of  lard  made 
by  Springer  from  the  hogs  cut  and  packed,  &c. 

Upon  the  trial,  the  defendant,  in  order  to  sustain  his 
set-ofl",  introduced  to  the  jury  the  following  agreement: 
"  Article  of  agreement  between  M.  D.  Springer  &  Co. 
of  the  first  part,  and  Pickering  &  Carly,  of  the  second. 
Springer  &  Co.  agree  to  pack  from  one  to  three  thousand 
hogs  for  said  Pickering  &  Carly,  as  follows  :  The  lard 
rendered  and  packed  in  barrels,  marked  and  weighed,  the 
pork  packed  in  barrels  or  bulked,  as  shall  be  directed. 
All  to  be  delivered  at  the  landing  of  Springer  &  Co.  The 
work  to  be  done  in  a  workman-like  manner,  for  which  the 
said  Pickering  &  Carly  agree  to  pay  said  Springer  &  Co. 
16  cents  from  the  scales.  The  said  Pickering  &  Carly 
to  furnish  salt  and  barrels,  delivered  at  the  aforesaid 
landing,"  &c. 

From  the  bill  of  exceptions  it  appears  that  this  instru- 
ment was  adopted  as  the  contract  and  basis  of  the  opera- 
tions between  the  parties  to  this  suit,  and  that  they  were 
governed  by  it  in  their  dealings  in  respect  to  the  hogs, 
pork  and  salt  mentioned  in  defendant's  set-off.  The 
testimony  as  set  forth  in  the  bill  of  exceptions  proved 
that  hogs  had  been  delivered  by  defendant  below  at  the 
landing  of  said  Springer,  in  pursuance  of  the  terms  of  this 
contract,  and  that  said  salt  had  also  been  delivered  for 
the  purpose  of  salting  said  pork.  Tlie  com"t  instructed 
the  jury  that  it  devolved  upon  the  defendant  to  show  how 
much  pork  and  salt  were  delivered  to  plaintiff,  and  the 
plaintiff  to  show  that  he  accounted  for  such  pork  and  salt 
at  the  landing  of  Springer  &  Co.,  when  called  for  by  the 
defendant  in  accordance  with  the  contract,  and  that  if 
defendant  or  his  agent  would  not  permit  either  by  acts 
or  words  the  jjlaintiflf  to  account  for  said  salt  and  pork  at 
the  landing  where  he  desired  to  do  so,  it  devolved  upon 
defendant  to  show  the  loss  which  he  had  sustained.  It 
appears  that  this  last  instruction  was  given  in  reference 
to  testimony  showing  that  when  defendant  by  his  agent 


392  SUPREME  COURT  CASES, 


Springer  v.  Stewart. 


went  to  the  lauding  of  said  Springer  &  Co.  to  take  away 
the  pork  when  it  was  cured,  that  plaintiff  proposed  to 
show-  the  exact  amount  of  said  pork  when  he  delivered  it 
to  the  agent  of  said  defendant,  but  that  said  agent  rejected 
said  proposal,  and  took  said  pork  without  ascertaining 
the  quantity  which  he  then  received. 

To  these  instructions  the  plaintiff  excepted.  The 
instructions  of  the  court  being  based  upon  the  contract 
between  the  parties,  it  only  becomes  necessary  to  ascertain 
whether  the  construction  given  to  the  contract  by  the 
court  was  a  proper  one. 

By  the  agreement  as  adopted  by  the  parties.  Springer 
&  Co.  agreed  to  pack  from  one  to  three  thousand  hogs  for 
Stewart,  to  render  the  lard,  &c.,  and  deliver  the  same  at 
his,  Springer's  landing.  For  this  Stewart  was  to  pay  a 
certain  price  and  furnish  salt,  and  barrels  at  said  landing. 
For  the  work  23erformed  under  this  contract,  Springer 
brought  his  suit.  Stewart  pleaded  the  general  issue,  and 
gave  notice  of  a  set-off,  claiming  a  balance  due  him  for 
hogs,  salt  and  lard  which  had  never  been  accounted  for  to 
Baid  Stewart  by  Springer.  By  the  terms  of  the  contract, 
each  party  was  under  obligations  to  perform  certain  speci- 
fied duties.  The  conditions  of  the  agreement  were  mutual 
and  dependent.  Stewart  was  to  furnish  the  hogs,  barrels, 
salt,  &c.,  and  Springer  to  pack  the  pork,  render  the  lard, 
&c.,  and  deliver  them  at  his  landing. 

In  order  to  entitle  Stewart  to  sustain  his  set-off,  it 
was  incumbent  upon  him  to  prove  how  much  pork  and 
salt  were  delivered,  and  also  upon  Springer,  before  he 
was  entitled  to  recover,  to  show  that  he  accounted  for 
the  pork,  salt  and  lard.  We  do  not  see  that  any  other 
reasonable  construction  can  be  placed  upon  the  contract 
between  the  parties,  and  therefore  are  of  the  opinion  that 
the  instructions  by  the  court  were  correctly  given. 

Judo-ment  affirmed. 


J.  H.  Cowles,  for  plaintiff  in  error. 
W.  J.  Cochran,  for  defendant. 


BURLINGTON,  ]\IAY,  1850.  393 


Olive  V.  Daugherty, 


OLIVE  V.  DAUGHERTY. 

In  an  action  of  right,  the  jur}'  returned  a  verdict,  "We  find  the  plaintifFen- 
titled  to  no  part  of  lot,  &c.,  at  this  time,  but  is  entitled  to  $32.50  damas'es; 
and  that  the  defendant  is  entitled  to  and  took  possession  of  the  lot  under 
color  of  title  ; "  held  that  on  such  a  verdict  a  judgment  might  be  rendered, 
and  that  the  plaintiff  might  recover  upon  a  less  title  than  that  set  forth 
in  the  declaration. 

Error  to  Lee  District  Coubt. 

Opinion  hy  Greene,  J.  An  action  of  right  commenced 
l)y  James  Daugherty  v.  John  Olive.  Declaration  and 
plea  were  drawn  up  in  the  form  provided  by  statute. 

The  case  was  submitted  to  a  jury,  who  returned  a  ver- 
dict in  the  following  words  :  "  We,  the  jury,  find  the 
plaintiff  entitled  to  no  part  of  lot  No.  11,  in  block  No.  26, 
in  the  town  of  Keokuk,  Lee  Co.,  Iowa,  at  this  time;  but 
is  entitled  to  $32.50  damages,  and  that  the  defendant  is 
entitled  to,  and  took  jDossession  of  the  lot  under  color  of 
title."  This  verdict  appears  to  have  been  delivered,  and 
a  judgment  thereon  rendered,  without  any  exceptions  being 
taken. 

It  is  now  objected  that  the  verdict  could  not  justify  any 
judgment  against  the  defendant  below,  that  the  plaintiff 
could  not  recover  upon  a  mere  lease  or  demise,  nor  upon 
any  title  less  than  that  set  forth  in  the  declaration. 

We  think,  however,  that  the  statute,  to  allow  and  regu- 
late the  action  of  right,  furnishes  no  ground  for  those  ob- 
jections. The  twenty-fourth  section  clearly  justifies  the 
judgment  in  this  case.  It  provides,  that  if  the  interest  of 
the  plaintiff  in  the  property  sued  for  expire  before  the 
day  of  trial,  the  verdict  for  the  plaintiff  shall  be  only  for 
his  damages,  and  that  judgment  shall  be  rendered  accord- 
ingly.    Rev.  Stat.,  529. 

The  above  8ectio.u  appears  to  have  been  framed  with  a 

particular  reference  to  cases  like  the  present.    It  obviously 

assumes  that  a  recovery  may  be  had  upon  a  mere  lease  or 

demise,  and  upon  a  less  title  than  is  averred  by  the  gene- 

Vol.  IL  26 


394  SUPREME  COURT  CASES, 

Jamison  v.  Reid. 

ral  form  of  declaration  furnished  by  tlie  act.  It  would  be 
a  new  feature  in  judicial  proceedings  to  require  a  plaintiff 
to  prove  and  obtain  a  verdict  for  all  lie  may  claim  in  his 
declaration,  before  he  could  be  entitled  to  a  judgment. 
Although  he  cannot  recover  more,  it  is  a  universal  rule 
that  he  may  recover  less  than  he  demands. 

Another  reason  why  the  proceedings  below  should  not 
be  disturbed  is,  that  no  exception  was  taken  at  the  trial. 
All  appears  to  have  been  silently  acquiesced  in,  and  there- 
fore, unless  the  record  disclosed  palpable  error  or  injus- 
tice, it  would  be  im]3roper  to  reverse  the  judgment. 
Giving  to  the  verdict  in  this  case  that  reasonable  intend- 
mcDt  which  courts  of  justice  should  always  encourage,  we 
must  conclude  that  it  was  authorized  by  the  pleadings, 
and  that  the  judgment  was  conformable  to  the  statute. 

Judgment  affirmed. 

J.  C.  Hall,  for  plaintiff  in  error. 

Geo.  C.  Dixon  and  S.  M.  Powers,  for  defendant. 


JAMISON  V.  REID. 

In  an  application  to  the  supreme  court  for  mandamus  on  the  district  judge, 

affidavits  were  filed  to  show  that  certain  facta  were  proved  to  the  court 
below  which  were  not  certified  in  the  bill  of  exceptions  ;  to  these  counter 
affidavits  were  filed  ;  held  that  in  a  matter  thus  susceptible  of  proof,  and 
within  the  knowledge  and  sound  discretion  of  the  court  below,  this  court 
will  not  interfere  by  mandamus. 

Error  to  Lee  District  Court. 

Opinion  by  Williams,  C,  J.  This  case  and  three 
others — viz.,  Joseph  Taylor  v.  Hugh  T.  Reid;  Harlow 
Barney  v.  same ;  James  Sprott  v.  same — are  here  upon 
writ  of  error.  The  i>ttorney  for  plaintiffs  in  error  in  the 
several  cases  moves  the  court  as  follows,  viz.  : — 


BURLINGTON,  MAY,  ISoO.  395 


Jamison  v.  Reid. 


"  And  now  comes  James  Jamison  plaintiff  in  error, 
by  Dixon  his  attorney,  and  asks  the  conrt  for  further  time 
to  assign  errors,  and  upon  retm*n  of  a  certain  transcript 
mentioned  in  the  affidavit,  filed  in  this  canse,  for  an  alter- 
native mandamus  directed  to  the  Hon.  Geo.  H.  Williams, 
district  judge  of  Lee  county,  to  correct  the  bill  of  excep- 
tions filed  in  this  cause,  or  show  cause  upon  the  affidavit 
and  papers  made  a  part  thereof,  filed  in  this  cause." 

By  consent,  the  decision  of  the  question  arising  upon 
the  motion  in  this  case,  being  the  same  as  that  in  the 
other  three,  is  to  apply  to  them  all. 

The  gravamen  of  the  motion  is  laid  by  the  affidavits  of 
G.  C.  Dixon  and  Philip  Veile,  Esq.  The  first  states  on 
oath,  that  on  the  trial  in  the  court  below,  among  other 
tilings,  the  defendant  Jamison  offered  in  evidence  an  alias 
fi.fa.  upon  a  judgment  or  decree  for  costs  in  the  partition 
suit  of  the  half-breed  tract,  rendered  in  1841,  against 
Augustus  Gonville,  and  under  a  sale,  upon  which  ^.y^. 
Eeid,  the  plaintiff  in  this  suit,  claimed  title.  That  de- 
fendant also  proved  by  said  Veile,  that  said  Augustus 
Gonville  died  in  1844  ;  and  that  said  defendant  offered  to 
prove  that  said  Gonville  died  before  the  issuing  and  test 
of  the  said  alias  y^.^a.;  but  that  Reid,  the  plaintiff,  ob- 
jected to  such  evidence,  and  the  objection  was  sustained 
by  the  court,  the  evidence  excluded,  and  defendant  ex- 
cepted. The  affidavit  states  that  the  cause  was  tried  at 
the  November  term  of  Lee  county  district  court,  1849,  at 
the  latter  part  of  the  term ;  that  for  want  of  time,  by. 
agreement  of  the  parties,  the  bills  of  exceptions  were  not 
drawn  up  until  after  the  adjournment  of  the  court.  That 
the  exceptions  were  settled  by  the  judge  in  vacation. 
That  he,  affiant,  had  no  opportunity  to  have  said  bills  of 
exceptions  corrected  until  the  April  term  of  said  court. 

Philip  Veile,  judge  of  ]3robate,  states  in  his  affidavit, 
that  he  was  sworn  as  a  witness  in  the  cause,  and  stated  in 
evidence,  that  the  records  of  tlie  probate  court  showed 
that  Gonville  died  in  March  1844, 

It  appears  that  at  the  April  term  of  the  Lee  county  dis- 


396  SUPREME  COURT  CASES, 

Jamison  v.  Reid. 

trict  court  afterward,  application  was  made  to  the  district 
judge  to  correct  or  alter  the  bills  of  exceptions  as  to  the 
matters  here  alleged ;  and  the  parties  were  heard  on  the 
motion  ;  and  that  the  court  then  refused  the  motion,  and 
the  bills  were  left  standing  as  they  were  at  first  drawn. 

The  defendant  in  error,  Reid,  filed  his  affidavit  contra- 
dictory to  that  upon  which  the  motion  is  based,  and 
affirming  the  evidence  as  ofiered  to  be  the  same  as  stated 
in  the  bill  of  exceptions,  so  far  as  the  same  related  to  the 
time  of  Gonville's  death. 

It  appears  that  the  attorneys  and  parties  could  not 
agree  upon  the  evidence  as  offered,  and  that  the  proof 
as  to  what  it  had  been  was  contradictory.  It  is  to  be 
presumed  that  the  judge  certified  the  bill  of  exceptions, 
then,  truthfully,  so  far  as  he  could,  stating  the  fact  as  he 
understood  it  to  be. 

In  a  matter  of  this  kind,  being  of  fact,  trans|)iring  on 
trial,  susceptible  of  proof  in  the  way  pointed  out  by  the 
statute,  or  within  the  peculiar  knowledge  of  the  judge 
below,  and  submitted  to  him  by  the  consent  of  the  parties, 
this  court  will  not  interfere  by  its  supervising  and  cor- 
recting power,  by  mandamus. 

This  court  is  not  called  on  to  compel  the  judge  to  per- 
form a  legal  and  proper  act  required  of  him,  but  to  dic- 
tate what  shall  be  done  by  him  in  performing  that  act. 
"We  cannot  thus  be  called  on,  sitting  as  an  aj)pellate 
supervisory  court,  to  hear  and  determine  the  facts  on 
which  the  adjudication  of  this  question  would  depend. 

The  means  of  enforcing  the  signing  and  sealing  of  the 
bill  of  exceptions,  as  asked  for  by  the  plaintiff  in  error, 
and  as  prescribed  by  statute,  were  waived. 

The  practice  act.  Rev.  Stat.,  p.  472,  §  19,  provides  for 
the  taking  "  exceptions  to  the  opinion  of  the  com-t  during 
the  progress  of  the  trial,  in  writing ;  which,  when  thus 
taken,  it  is  "  the  duty  of  the  judge  to  allow  and  sign  and 
seal.  But  if  the  judge  refuse  to  allow  or  sign  such  bill 
when  tendered,  then  it  may  be  signed  by  bystanders  or 
attorneys  of  the  court,  and  if  the  judge  refuse  to  permit 


BURLINGTON,  MAY,  1850.  397 

Nelson  v.  Gray. 

tlie  bill  to  become  a  part  of  tbe  case,  upon  affidavit  of  such 
refusal,  the  supreme  court  may  admit  such  bill  of  excep- 
tions as  a  part  of  the  record.  The  legislature  here  have 
provided  a  legal  remedy  for  the  neglect  or  refusal  of  the 
judge  to  sign  and  seal  the  bill  of  exceptions,  if  it  be  ten- 
dered at  the  proper  time.  We  admit  that  the  practice  of 
deferring  the  taking  of  the  bill,  not  having  it  signed  by 
the  judge  until  after  the  trial  is  concluded,  has  prevailed 
in  the  courts  of  this  state.  When  this  is  done,  the  judge 
necessarily  must  trust  to  his  notes  or  to  his  memory  for  the 
facts  to  be  certified  in  the  bill  of  exceptions,  should  there 
be  a  disagreement  between  the  parties  or  their  attorneys 
as  to  the  facts.  Good  grounds  are  not  shown  for  a  man- 
damus in  this  case.  The  statute  affords  an  adequate  and 
ample  remedy  to  the  party  taking  exceptions,  when  the 
judge  refuses  to  properly  certify  the  bill  of  exceptions. 
United  States  v.  Dubuque  Co.,  Morris,  31 ;  Shejy/ierd  v. 
Wilsou,  6  How.,  260. 

The  writ  of  mandamus  is  only  properly  exercised  in  cases 
of  extreme  necessity,  where  there  is  no  adequate  means  at 
law  to  enforce  a  rightful  official  duty,  and  when  the  party 
seeking  relief  has  not  been  in  default. 

The  writ  of  mandamus  refused, 

Geo.  C.  Dixon,  for  plaintiff  in  error. 

H,  T,  Reid  and  H.  L.  Reeves,  for  defendant. 


>  •  »  •  < 


NELSON  et  al  v.  GRAY. 

The  district  courts  have  concurrent  jurisdiction  with  justices  of  the  peace  in 

all  sums  under  $100. 
After  ilie  death  of  a  party  is  suggested,   it  is  error   to  render  judgment 

against  him. 
Where  a  judgment  is  rendered  upon  a  bond,  it  sliould  be  for  the  amount  of 

the  penalty  ;  with  an  order  that  an  execution  issue  only  for  the  amount  of 

damages  proved  to  have  been  sustained  by  the  breaches. 


398  SUPREME  COURT  CASES, 


Nelson  v.  Gray. 


Error  to  Lee  District  Court. 

Opinion  hy  Kikney,  J.  This  was  an  action  of  debt 
commenced  in  the  district  court  by  Gray,  for  the  use  of 
Welsh,  against  Nelson  and  Dawson,  upon  a  replevin  bond 
executed  by  them  jointly  and  severally  in  the  penal  sum 
of  $80.  After  much  interlocutory  pleading  a  trial  was 
had,  and  the  jury  found  a  verdict  for  plaintiffs  in  the  sum 
of  $42.40,  and  costs.  A  motion  for  a  new  trial  was  made 
and  overruled.  The  plaintiffs  assign  the  following  for 
error : — 

1st,  Said  bond  being  under  $100,  said  district  court  had 
no  jurisdiction. 

2d,  That  the  judgment  is  rendered  against  Dawson  and 
Nelson,  the  latter  of  whom  the  record  shows  was  dead  at 
the  time  of  the  rendition  of  said  judgment, 

3d,  That  the  jury  found  a  verdict  of  $42.40,  which  is 
inconsistent  with  the  declaration,  $80  being  the  penal  sum 
of  the  bond,  and  the  amount  for  which  judgment  in  debt 
ought  to  have  been  rendered. 

The  first  assignment  attacks  the  judgment  of  the  district 
court  for  want  of  jurisdiction,  where  the  amount  claimed 
is  under  $100.  The  constitution  provides  that  the  district 
court  shall  be  a  court  of  law  and  equity,  and  have  juris- 
diction in  all  civil  and  criminal  matters  arising  in  their 
respective  districts,  in  such  manner  as  shall  be  prescribed 
by  law.  Art.  6,  §  4.  It  also  provides  that  the  jurisdic- 
tion of  justices  of  the  peace  shall  extend  to  all  civil  cases 
(except  cases  in  chancerj^,  and  cases  where  the  title  to  any 
real  estate  may  arise)  where  the  amount  in  controversy 
does  not  exceed  $100.  Art.  12,  §  1.  It  was  claimed  in  the 
argument  that  this  last  clause  gave  to  justices  of  the  peace 
exclusive  jurisdiction  to  the  amount  limited  by  the  consti- 
tution, and  that  the  district  court  could  not  exercise  con- 
currently a  jurisdiction  under  $100. 

We  think  this  a  violent  construction  of  the  constitution. 


BURLINGTON,  MAY,  1850.  399 

Nelson  v.  Gray. 

By  the  constitution,  tlie  district  courts  have  jurisdiction  in 
all  civil  and  criminal  matters  in  their  respective  districts. 
This  power  may  he  exercised  in  all  cases  where  the  amount 
claimed  is  under  $100,  as  well  as  in  cases  where  the  de- 
mand is  over.  In  the  former,  neither  court  has  exclusive, 
but  each,  concurrent  jurisdiction.  The  legislature  may  hj 
law  regulate  the  practice  and  proceedings  in  the  district 
courts,  and  in  this  way  provide  the  mode  of  exercising  the 
jurisdiction,  but  cannot  curtail  or  restrict  the  power  con- 
ferred by  the  constitution. 

If  there  is  an  apparent  conflict  between  the  clause  in 
relation  to  the  jurisdiction  of  district  comets  and  that  of 
justices  of  the  peace,  each  if  possible  should  be  so  con- 
strued as  to  preserve  the  force  and  harmony  of  both. 

As  well  might  we  say,  that  the  jurisdiction  of  the  dis- 
trict courts  in  all  sums  under  $100  is  exclusive,  because 
it  extends  to  all  civil  matters,  as  to  place  that  construc- 
tion upon  the  same  language  in  relation  to  the  jurisdiction 
of  justices'  courts.  The  same  reason  exists  for  the  one  as 
the  other,  and  hence  such  a  construction  upon  either  clause 
would  be  violent,  unsound  and  erroneous.  But  by  giving 
to  each  court  a  concm-rent  jurisdiction  to  the  extent  con- 
ferred upon  justices  of  the  peace,  the  harmony  of  these 
provisions  of  the  constitution  is  fally  preserved,  and  the 
manifest  intention  of  the  framers  of  the  instrument  de- 
clared and  enforced. 

But  the  court  erred  in  rendering  judgment  against 
Nelson.  From  the  record  it  appears  that  the  death  of 
Nelson  was  suggested,  and  the  cause  continued,  for  the 
purpose  of  making  his  administrator  a  party.  This  no- 
where appears  to  have  been  done,  and  the  verdict  is  re- 
turned against  both  defendants,  and  a  judgment  entered 
up  against  them,  which,  so  far  as  the  judgment  against 
Nelson  is  concerned,  is  erroneous. 

The  suit  being  brought  upon  a  penal  bond,  conditioned 
for  the  performance  of  covenants,  the  verdict,  if  for  the 
})laintifF,  should  have  been  for  the  penalty  of  the  bond, 
with  an  assessment  of  damages  to  the  amount  proved  to 


400  SUPREME  COURT  CASES, 

The  State  v.  Cadle. 

have  been  sustained  by  the  plaintiff  by  reason  of  the 
breaches  thereof. 

In  such  case  the  statute  provides  for  a  judgment  for  the 
penalty  to  stand  for  such  other  breaches  as  may  afterwards 
happen. 

Upon  a  verdict  by  the  jury  upon  these  bonds,  the  clerk 
should  issue  execution  only  for  the  amount  of  the  breaches 
assessed,  and  an  order  to  this  effect  should  be  entered  of 
record  as  a  part  of  the  judgment  of  the  case. 

In  this  case  the  penalty  of  the  bond  was  $80.  The 
jury  found  a  verdict  for  $42.40,  and  judgment  is  rendered 
for  the  amount  without  regard  to  the  penalty.  As  this 
was  error,  the  judgment  of  the  court  will  be  reversed,  at 
the  costs  of  the  defendant  in  error,  but  the  error  being 
more  of  form  than  substance,  not  seriously  affecting  the 
rights  of  the  plaintiffs  in  error,  we  will  not  award  a  trial 
de  novo,  but  direct  the  court  to  enter  up  a  judgment  in  legal 
form  against  Dawson,  the  surviving  obligor  in  the  bond. 

Judgment  reversed. 

J.  C.  Hall,  for  plaintiffs  in  error, 

Geo,  C.  Dixon,  for  defendant. 


THE  STATE  v.  CABLE. 

The  election  in  August,  1848,  was  the  second  general  election  nnder  the  con- 
stitution. 

Clerks  of  the  district  court  and  prosecuting  attorneys  should  be  biennially 
elected  at  the  general  elections. 

Submitted  by  Agreement  from  Muscatine  District 
Court. 

Opinion  bj  Greene,  J.     This  was  a  quo  warranto  on  the 
information  of  Abraham  Smalley  against  Ricliard  Cadle. 


BURLINGTON,  MAY,  1800.  401 

The  State  v.  Cadle. 

The  complainant  charges  Cadle  with  unlawfully  holding 
and  exercising  the  office  of  clerk  of  the  district  court,  in 
the  county  of  Muscatine,  to  the  exclusion  of  the  relator, 
who  claimed  to  have  been  regularly  elected  to  the  same 
office,  on  the  first  Monday  in  August,  1849,  and  to  have 
executed  a  bond,  and  to  have  taken  the  oath  of  office  as 
required  by  law,  on  the  25th  of  the  same  month. 

In  pleading  to  the  information  the  defendant  acknow- 
ledged that  he  did  hold  and  exercise  the  office  as  charged, 
but  denied  the  usurpation  alleged,  and  the  right  of  Smalley 
to  the  office;  and  he  justified  by  averring  that  he  was  duly 
elected  to  the  said  office  at  a  general  election  held  on  the 
first  Monday  in  August,  in  the  year  1848,  and  on  the  15th 
of  the  same  month  qualffied  himself  according  to  law,  and 
that  the  term  of  office  had  not  yet  expii'ed.  To  this  plea 
the  relator  demurred,  but  the  court  overruled  the  demurrer, 
and  adjudged  the  plea  a  sufficient  bar  to  the  action.  In 
thus  disposing  of  the  demurrer  the  court  necessarily  de- 
cided that  a  general  election,  as  provided  by  the  constitu- 
tion, was  held  on  the  ffi'st  Monday  in  August,  1848,  at 
which  the  defendant  was  elected  to  the  office  in  question 
for  the  term  of  two  years.  The  correctness  of  this  decision 
is  controverted  by  the  plaintiff  in  error,  and  this  is  the 
only  question  involved  in  the  case. 

The  constitution  provides  for  the  election  of  clerks  of 
the  district  court,  by  the  qualified  voters  of  each  county, 
at  the  general  election,  and  that  they  shall  hold  their  office 
for  the  term  of  two  years.  Laws  of  1847,  Art.  6,  §  5,  of 
the  state  constitution.  By  the  third  section  of  the  fourth 
article  it  is  provided,  that  "  the  members  of  the  house  of 
representatives  shall  be  chosen  every  second  year  by  the 
qualified  electors  of  their  respective  districts,  on  the  first 
Monday  in  August,  whose  term  of  office  shall  continue  two 
years  from  the  day  of  the  general  election."  The  sixth 
section  of  the  schedule  declared,  that  the  first  general 
election  under  the  constitution  should  be  within  three 
months  after  its  adoption,  at  such  time  as  the  governor  by 
proclamation  might  appoint  for  the  election  of  represent- 


402  SUPREME  COURT  CASES, 

The  State  v.  Cadle. 

atives  in  Congress  and  state  officers ;  but  the  office  of 
clerk  is  not  enumerated  in  that  section  as  one  of  those  to 
be  chosen  at  that  election.  Under  this  section  of  the  con- 
stitution the  governor  appointed  the  first  general  election 
in  October,  1846,  and  at  that  time  the  members  of  the  first 
general  assembly  were  elected,  and  clerks  were  chosen  in 
a  portion  of  the  counties.  As  several  of  the  clerks  were 
chosen  without  legal  notice  of  the  election,  an  act  was 
passed  in  which  any  person  who  received  for  clerk  a  majority 
of  all  the  votes  cast  in  the  county  for  state  officers,  "  at 
the  general  election  on  the  26th  October,  1846,"  should  be 
recognized  as  clerk,  on  giving  the  bond  and  taking  the  oath 
required  by  law.     Laws  of  1847,  p.  24. 

Clerks  were  again  elected  on  the  first  Monday  in  August, 
1847,  in  some  of  the  counties,  and  their  election  was 
declared  to  be  legal  by  an  act  of  the  general  assembly, 
approved  January  25,  1848,  and  by  the  same  act  subse- 
quent elections  were  authorized  to  take  place  on  the  first 
Monday  in  August,  1849,  and  bienniall}'  thereafter. 

But  in  many  of  the  counties  clerks  were  elected  at 
the  general  election  in  1848,  and  in  December  following 
another  act  was  passed  which  repealed  the  act  of  January 
25,  1848,  so  far  as  it  applied  to  the  election  of  prosecuting 
attorneys  and  district  clerks,  held  on  the  first  Monday  in 
August,  1 848.  This  new  act  also  provided  that  those  officers 
should  be  elected  on  the  first  Monday  in  August,  1850,  and 
every  two  years  thereafter  in  every  organized  county  in 
the  state.  The  legislation  on  this  subject  has  not  only 
been  contradictory,  but  some  of  it  has  been  repugnant 
to  the  constitution.  By  that  instrument  it  is  expressly 
established  that  the  clerks  and  j)rosecuting  attorneys  shall 
be  elected  at  the  general  election,  and  hold  their  offices 
during  the  term  of  two  years,  and  the  time  designated  for 
this  general  election  is  the  first  Monday  in  August,  when 
the  members  of  the  general  assemblj^  are  to  be  biennially 
chosen.  But  the  first  general  election,  as  we  have  seen, 
was  to  be  at  such  time  as  the  territorial  o-overnor  miu'ht 
by  proclamation  appoint.     Tliat  time  ha\ing  been   fixed 


BURLINGTON,  MAY,  1850.  403 

The  State  v.  Cadle. 

in  December,  1846,  it  necessarily  follows  that  tlie  next 
general  election,  as  biennially  designated  by  the  constitu- 
tion, was  on  the  first  Monday  in  August,  1848,  and  would 
occur  on  the  same  Monday  in  every  alternate  year  there- 
after. This,  we  think,  is  the  only  construction  that  can 
harmonize  with  the  letter  and  spirit  of  the  constitution, 
and  such,  we  conclude,  was  the  obvious  intention  of  its 
franiers.  So  far  as  public  convenience  can  have  a  bear- 
ing upon  this  question  of  construction,  it  was  no  doubt 
promoted  by  the  decision  below.  Most  of  the  elections 
have  been  conducted  conformable  to  that  view,  and  with 
that  understanding  most  of  the  election  laws  have  been 
enacted.  The  first  legislature  under  the  constitution 
clearly  recognized  that  construction,  in  passing  an  act  de- 
fining the  time  of  holding  elections  for  state,  district  and 
county  officers.  Laws  of  1847,  p.  163.  The  second  section 
of  that  act  provides  that  the  governor  shall  be  elected  every 
fom*  years,  counting  from  the  first  Monday  in  August,  1846  ; 
and  the  biennial  election  of  secretary,  auditor  and  treasurer 
of  state,  counts  from  the  same  date,  according  to  the  third 
section  of  the  act.  In  section  5,  after  providing  for  the 
election  of  several  county  officers  on  the  first  Monday 
of  August,  1847,  and  biennially  thereafter,  it  is  enacted, 
"  that  in  those  counties  where  there  was  no  election  for 
clerks  of  the  district  court  and  prosecuting  attorneys 
at  the  last  election,  there  shall  be  elected,  on  the  first 
Monday  in  August  next,  one  clerk  of  the  district  court 
and  one  prosecuting  attorney,  who  shall  hold  their  offices 
until  the  general  election  on  the  first  Monday  in  August, 
1848,"  &c. ;  and  the  same  act  provides  for  the  election  of 
senators  and  representatives  at  the  election  of  1848,  and 
biennially  thereafter.  These  various  sections  properly 
considered  show  the  contemporaneous  construction  placed 
upon  the  constitution  by  the  general  assembly  in  relation 
to  elections  ;  that  construction  has  generally  prevailed  in 
practice,  and  has  repeatedly  been  sanctioned  by  judicial 
decisions.  So  far  then  as  public  convenience  can  influence 
a  decision  upon  a  question  of  doubtful  construction,  it 


404  SUPREME  COURT  CASES, 


1 


Trimble  v.  The  State, 


is  in  support  of  the  decision  made  in  the  court  below. 
But  independent  of  this  consideration,  and  without  going 
beyond  the  explicit  language  of  the  constitution,  we  have 
united  in  the  conclusions,  that  the  general  elections 
authorized  by  the  constitution  are  biennial,  and  as  the 
first  general  election  took  place  in  1846,  the  second  was 
held  on  the  first  Monday  in  August,  1848,  and  all  subse- 
quent ones  must  be  held  every  two  years  thereafter ;  and 
that  under  the  constitution  the  only  time  appointed  for 
the  election  of  clerks  and  prosecuting  attorneys  is  at  the 
general  elections. 

Judo-ment  affirmed. 


"■Q' 


D,  C.  Cloud,  for  plaintiff  in  error. 
W,  G,  Woodward^  for  defendant. 


r  •   *  •  < 


TRIMBLE  V.  THE  STATE. 

The' act  of  the  legislature  creating  two  jury  districts,  and  appointing  two 
different  places  to  hold  the  district  court  in  Lee  county,  is  not  uncon- 
stitutional.    Kinney  J.,  contra. 

In  examining  a  juror  as  to  his  qualification,  he  stated  that  "  he  had  formed 
and  expressed  an  opinion  from  the  rumor  or  report  he  had  heard  in  hia 
neighborhood,  soon  after  the  murder  was  committed  ;  that  he  had  no 
acquaintance  with  the  defendant,  no  ill-will  or  prejudice  against  him  ; 
that  he  had  no  personal  knowledge  of  the  circumstances  of  the  case ;  that 
he  had  never  heard  any  of  the  testimony  or  conversed  with  any  of  the 
witnesses ;  that  his  opinion  was  conditional ;  that  if  what  he  had  heard 
was  true,  he  had  formed  an  opinion,  and  if  not  true  he  had  formed  none." 
Held  that  such  a  juror  is  incompetent. 

Error  to  Lee  District  Court. 

Opinion  by  Williams,  C.  J.  Alexander  Trimble  was 
indicted  at  the  September  term  of  the  district  court  at 
Keokuk,  in  Lee  county,  a.d.  1849,  for  the  murder  of 
Richard  Wells.    He  was  found  guilty  of  manslaughter  by 


BURLINGTON,  MAY,  1850.  405 


Trimble  v.  The  State. 


the  jury,  and  sentenced  by  the  court  upon  the  verdict  to 
pay  a  fine  of  $1000,  to  undergo  confinement  in  the  peni- 
tentiary for  the  term  of  three  years,  and  to  pay  the  costs 
of  prosecution.  When  the  cause  was  called  for  trial,  the 
counsel  for  the  prisoner  made  three  challenges  to  the 
array  of  grand  and  petit  jurors  respectively.  The  chal- 
lenges were  overruled  hy  the  court.  Having  proceeded 
witli  the  trial  so  as  to  call  several  petit  jurors  to  the  box, 
upon  examination  as  to  their  legal  qualification  to  sit  as 
jurors  in  the  case,  they  were  challenged  by  the  prisoner 
for  cause.  The  challenge  was  overruled,  and  the  jm-ors 
were  sworn,  and  participated  in  making  and  rendering  the 
verdict,  upon  which  the  judgment  and  sentence  of  the 
court  were  pronounced.  Motions  in  arrest  of  judgment 
and  for  a  new  trial  were  made,  and  overruled  by  the  court, 
before  judgment  and  sentence. 

The  following  are  the  principal  assignments  of  error, 
which  are  relied  on  as  ground  of  reversal : — 

1.  The  court  erred  in  overruling  the  prisoner's  challenges 
to  the  array  of  grand  and  petit  jurors  who  found  the  in- 
dictment and  tried  the  cause ;  the  venue  for  summoning 
both  being  illegal. 

2.  The  court  erred  in  not  allowing  defendant's  challenges 
for  cause  of  jurors  who  had  each  formed  and  expressed 
an  opinion  as  to  the  guilt  or  innocence  of  the  prisoner. 

The  first  assignment  involves  the  question  of  legal 
validity  as  to  selection,  summoning  and  qualifications 
of  the  jurors,  grand  and  petit. 

The  objection  involves  the  constitutionality  of  the  pro- 
ceeding as  conflicting  with  the  organization  of  the  coun- 
ties of  the  state  for  judicial  purposes.  In  order  to  the 
proper  disposition  of  this  question,  we  will  refer  to  the 
provisions  of  the  constitution,  and  the  acts  of  the  legis- 
latm-e  affecting  the  subject  under  consideration. 

The  act  of  January  24,  1848,  entitled  "An  act  fixing 
the  times  and  places  of  hokling  the  district  courts  in  the 
first  judicial  district,"  enacts  that  the  times  and  places  of 
holding  the  court  shall  be,  "  In  the  county  of  Lee,  at  Fort 


406  SUPREME  COURT  CASES, 

Trimble  v.  The  State. 

Madison,  on  the  first  Monday  in  April  and  first  Monday 
in  November ;  at  the  city  of  Keoknk,  in  said  county  of 
Lee,  on  the  third  Monday  in  February  and  third  Monday 
in  September  ;  Provided,  That  the  authorities  of  the  city 
of  Keokuk  shall  provide,  free  of  charge,  the  necessary 
rooms  for  holdiug  court  at  said  county  (city)." 

Sec.  2d  provides,  Tliat  "the  said  district  courts  in  the 
county  of  Lee  shall  have  concurrent  jurisdiction  in  all 
civil  causes  in  said  county,  except  appeals  from  justices  of 
the  peace  in  the  city  of  Keokuk,  and  in  the  townships  of 
Jackson,  Des  Moines  and  Montrose." 

Sec.  3d,  That  the  district  court  at  the  city  of  Keokuk 
shall  have  exclusive  jurisdiction  in  all  criminal  causes, 
and  in  all  appeals  in  civil  causes  from  justices  of  the  peace 
in  the  said  city  of  Keokuk,  and  in  the  townships  of  Jack- 
son, Des  Moines  and  Montrose,  in  said  county  of  Lee." 

Provision  is  then  made  by  the  act,  by  w^hich  jurisdic- 
tion in  all  civil  and  criminal  matters,  as  by  law  allowable, 
(except  those  arising  in  the  city  of  Keokuk,  Jackson, 
Des  Moines  and  Montrose  townships,)  within  the  county 
of  Lee,  is  conferred  npon  the  district  court  to  be  holden 
at  Fort  Madison.  The  sherifi"  and  clerk  of  the  district 
court  of  the  county  are  required  to  have  offices  at  both 
places  ;  and  the  former  acts  of  the  legislature  fixing  the 
times  and  places  for  holding  the  district  court  in  Lee 
county  are  repealed.  The  effect  of  this  enactment  is  to 
establish  the  city  of  Keokuk  as  a  place  for  the  holding  of 
the  district  court  in  Lee  county,  for  the  transaction  of 
judicial  business  within  the  city  and  the  three  townships 
named,  in  accordance  with  the  terms  therein  specified. 

It  is  contended  by  the  defendant's  counsel,  thai:  the 
venire  for  the  summoning  of  the  grand  and  petit  jurors, 
requiring  them  to  be  taken  from  the  city  of  Keokuk  and 
the  townships  of  Jackson,  Des  Moines  and  Montrose,  and 
not  from  the  body  of  the  whole  county  of  Lee,  is  defective 
in  law,  and  in  derogation  of  the  right  of  the  prisoner. 

The  right  of  the  legislature  to  divide  the  county  for  judi- 
cial purposes  is  denied.     The  judicial  power  of  tlie  state 


BURLINGTON,  MAY,  1850.  407 

Trimble  v.  The  State. 

is  invoked  to  maintain  the  rights  of  the  accused,  as  guar- 
anteed by  the  law  of  the  land,  and  under  the  constitution. 
It  is  alleged  that,  by  confining  the  selection  of  grand  and 
petit  jurors,  the  accused  lias  been  curtailed  in  his  right  to 
have  his  case  submitted  to  juries  made  up  of  qualified 
voters  chosen  from  the  body  of  the  county  of  Lee,  as  the 
venire  required  that  they  be  taken  from  the  townships  of 
Jackson,  Des  Moines  and  Montrose,  in  the  county  of  Lee. 

It  is  clearly  the  province  of  the  legislature,  as  it  is  their 
duty,  to  i^rovide  for  the  municipal  convenience  and  wel- 
fare of  the  counties  of  the  state  in  judicial  policy.  Public 
economy,  as  well  as  private  interests,  in  view  of  the  in- 
crease of  population  and  business,  may  justly  require 
change,  productive  of  easement  to  the  community.  Judi- 
cial or  other  governmental  arrangement  adapted  to  the 
condition  of  a  new  state,  when  population  is  sparse  and 
business  transactions  are  few  and  unimportant,  may,  after 
a  lapse  of  time,  and  increase  and  improvement,  prove  in- 
adequate to  the  wants  of  the  public.  When  such  is  the 
case,  it  is  proper,  indeed  it  becomes  necessary,  that  the 
law  should  be  changed  to  answer  the  demands  of  popular 
advancement.  To  effect  this  the  legislative  power  may  be 
invoked  and  exercised.  This  power  is  limited,  and  in  a 
measure  regulated,  by  the  constitution  of  the  state.  The 
municipal  affairs  of  the  state  are  to  be  regulated  by  the 
common  law,  which  remains  unchanged  by  legislative 
enactment,  when  exercised  without  violation  of  the  con- 
stitution. The  law  in  question  is  confined  in  its  operation 
to  Lee  county,  and  is  so  far  local.  Then  how  does  this  act 
of  the  legislature  establishing  the  two  com*ts,  and  dividing 
Lee  county  for  judicial  purposes  stand,  in  view  of  the 
constitution,  in  its  effect  upon  the  rights  of  the  accused  ? 

The  constitution  of  this  state  provides,  "  That  the  right 
of  trial  by  jury  shall  remain  inviolate."  It  secures  to  the 
accused  a  speedy  trial  by  an  impartial  jury.  That  he  shall 
be  informed  of  the  accusation  against  him,  &c.  By  sec- 
tion 11th  of  the  bill  of  rights,  it  is  declared,  that  "no 
person  shall  be  held  to  answer  for  a  criminal  offence,  unless 


408  SUPREME  COURT  CASES, 

Trimble  v.  The  State. 

on  presentment  or  indictment  In/  a  grand  jury ;  except  in 
cases  cognizable  by  justices  of  tlie  peace,  or  arising  in  the 
army  or  navy,  or  in  tlie  militia,  when  in  actual  service 
in  time  of  war,  or  public  danger."  This  being  the  lan- 
guage of  the  constitution,  has  the  accused  been  deprived 
of  the  rights  thereby  secured  to  him,  by  the  proceeding  in 
this  case  ?  The  record  shows  that  the  grand  and  petit  jury 
consisted  of  the  usual  number  of  jurors,  that  an  indict- 
ment was  found  and  presented,  and  that  he  was  held  to 
answer  thereto,  and  tried  in  the  count}^  where  the  ofience 
charged  was  committed,  by  a  court  having  jurisdiction  of 
the  case  by  virtue  of  legislative  enactment.  The  supreme 
law  of  this  state,  then,  so  far  has  been  observed.  Since  the 
declaration  of  rights  in  1774,  the  right  of  trial  by  jury  has 
been  regarded  as  the  birthright  of  every  citizen.  Chan- 
cellor Kent  in  his  Commentaries,  vol.  ii.,  p.  13,  observes 
that  "  It  may  bo  received  as  a  self-evident  proposition, 
universally  understood  and  acknowledged  throughout  this 
country,  that  no  person  can  be  taken  or  imprisoned,  or 
disseized  of  his  freehold,  or  liberties  or  estate,  or  exiled,  or 
condemned,  or  deprived  of  life,  liberty  or  property,  unless 
by  the  law  of  the  land,  or  the  judgment  of  his  peers.'* 
The  learned  jurist  then  proceeds  to  say,  that  "  the  words, 
by  the  law  of  the  land,  as  used  in  Magna  Charta  in  refer- 
ence to  the  subject,  are  understood  to  mean  due  process 
of  law  ;  that  is,  by  indictment  or  presentment  of  good  and 
lawful  men,  and  this,  says  Lord  Coke,  is  the  true  sense  and 
exposition  of  these  words."  For  aught  that  is  apparent 
of  record  on  this  point,  the  accused  was  tried  by  due 
process  of  law,  the  jurors,  grand  and  petit,  were  his  peers 
of  the  vicinage,  "  good  and  lawful  men,"  possessing  the 
requisite  qualifications.  They  were  resident  voters  of  the 
county  of  Lee.  In  this  respect,  there  is  no  valid  objection 
to  cither  array.  But  it  is  urged  that  the  accused  had  a 
right  to  have  a  grand  and  petit  jury  selected  and  summoned 
from  the  body  of  the  county  of  Lee,  and  therefore  the 
venire  is  defective,  being  confined  in  its  operation  to  the 
townships  of  Jackson,  Des  Moines  and  IMontrose,  which 


BURLINGTON,  MAY,  1850.  409 

Trimble  v.  Tlie  State. 

compose  only  a  part  of  the  county.  This  objection  goes 
directly  to  the  constitutional  validity  of  the  legislative 
enactment,  by  which  the  county  is  divided  for  judicial 
purposes ;  the  venire  being  in  accordance  with  the  S]3irit 
of  that  act. 

The  second  section  of  the  twelfth  article  of  the  constitu- 
tion is  cited  as  restricting  the  legislature,  so  as  to  invalidate 
the  act  establishing  the  court  at  Keokuk.  By  this  section 
it  is  declared,  that  ''  no  new  county  shall  be  laid  off  here- 
after, nor  old  county  reduced  to  less  contents  than  four 
hundred  and  thirty-two  square  miles."  "We  cannot  see 
how  this  section  of  the  constitution  can,  by  any  reasonable 
construction,  be  made  to  apply  to  the  point  here  raised. 
Lee  county  is  one  of  the  oldest  counties  in  the  state, 
organized  before  the  constitution  was  adopted,  and  is  the 
largest  and  most  populous.  The  act  in  question  does  not 
reduce,  or  in  any  way  change  it  territorially.  Its  square 
miles  in  number  are  as  they  were  before  this  act  was  passed. 
The  act  only  atfects  the  internal  and  municipal  organiza- 
tion and  interests  of  the  county.  This  the  legislature  had 
the  power  to  regulate,  upon  the  request  of  the  inhabitants, 
under  the  restriction  heretofore  designated. 

The  townships  of  Jackson,  Des  Moines  and  Montrose, 
are  within  the  county  of  Lee,  and  the  jurors  having  been 
selected  from  them,  were  taken  as  required  by  law  from 
the  body  of  that  county,  and  not  of  another.  "  The  body 
of  the  county,"  is  to  be  considered  as  expressing  the  county 
limit,  so  as  to  prevent  the  selection  of  jurors  residing 
without  the  county.  We  do  not  understand  that  the  law 
requires  jurors  to  be  taken  from  every  and  all  portions  of 
the  county.  If  so,  by  what  rule  are  the  fractions  or  sub- 
divisions of  the  county  for  this  purpose  designated?  The 
three  townships  which  are  set  apart  for  judicial  purposes 
in  establishing  the  court  at  the  city  of  Keokuk,  contain  a 
population  amply  sufficient  for  the  procurement  of  a  pro- 
per number  of  "good  and  lawful  men"  to  constitute  juries 
for  the  trial  of  criminal  and  civil  causes.  If,  by  reason  of 
great  excitement  or  otherwise,  prejudice  should  exist 
Vol.  II.  27 


410  SUPREME  COURT  CASES, 

Trimble  v.  The  State. 

against  a  party,  so  as  to  prevent  a  fair  and  impartial  trial, 
the  statute  has  provided  a  remedy  by  allowing  a  change  of 
venue  to  another  county. 

By  this  act,  all  previous  enactments  passed  for  estab- 
lishing the  times  and  jDlaccs  of  holding  the  district  court 
of  Lee  county,  are  expressly  repealed  in  the  seventh  sec- 
tion, and  all  acts  providing  for  the  judicial  organization 
of  that  county  with  which  the  act  conflicts,  are  also  re- 
pealed by  operation  of  law.  This  is  not,  therefore,  an 
interference  with  any  rights  secured  to  the  accused  by  the 
provisions  of  the  constitution.  There  is  no  constitutional 
provision  which  prohibits  the  establishment  of  the  addi- 
tional time  and  place  for  holding  the  district  court  in  and 
for  Lee  county.  The  decision  of  the  district  court  in  this 
matter  was  therefore  correct. 

But  it  is  contended  for  the  accused,  that  the  court  erred 
in  not  allowing  his  challenge  for  cause  to  jm'ors  who  had 
formed  and  expressed  an  opinion. 

The  bill  of  exceptions  shows,  that  on  proceeding  to  trial 
several  jurors  were  called  to  the  box,  who,  being  sworn  to 
answer  questions  touching  their  qualifications  as  jurors, 
answered  that  they  had  formed  and  expressed  an  opinion 
as  to  the  guilt  or  innocence  of  the  prisoner,  whereupon  the 
prosecuting  attorney  having  refused  to  challenge  them, 
they  were  challenged  for  cause  by  the  prisoner's  counsel, 
and  requested  to  leave  the  box.  Whereupon  the  court 
interposed,  saying  that  it  was  improper,  to  make  challenges 
in  that  way,  and  ordered  the  clerk  to  call  the  jurors  singly, 
which  being  done,  Peyton  Dawson,  one  of  the  jurors  called, 
stated  "  that  he  had  formed  and  expressed  an  opinion 
from  the  rumor  or  rejjort  he  had  heard  in  his  neighborhood, 
soon  after  the  murder  was  committed ;  that  he  had  no 
acquaintance  with  the  defendant,  no  ill-will  or  prejudice 
against  him ;  that  he  had  no  personal  knowledge  of  the  cir- 
cumstances of  the  case ;  that  he  had  never  heard  any  of 
tlie  testimony  or  conversed  with  any  of  the  witnesses;  that 
his  opinion  was  conditional ;  that  if  what  he  had  heard 
was  true,  he  had  formed  an  opinion  ;  if  what  he  had  heard 


BURLINGTON,  MAY,  1850.  411 

Trimble  v.  The  State. 

was  not  true,  lie  had  formed  none."  Six  other  jurors  being 
examined  made  the  same  statement.  After  this  examina- 
tion by  the  court,  the  counsel  for  the  prisoner  still  urged 
his  right  to  challenge  the  jurors  for  cause.  The  court 
overruled  the  challenge,  and  decided  that  the  jurors  were 
competent.  Whereupon  they  were  sworn  in  the  case,  and 
participated  in  making  the  verdict. 

To  this  action  of  the  court,  the  counsel  for  the  prisoner 
excepted. 

The  right  of  the  accused  "  to  a  speedy  trial  by  an  im- 
partial jury,"  is  secured  by  the  constitution.  It  is  there- 
fore important  in  this  case  to  ascertain  from  the  record 
whether  the  jurors  to  whom  the  prisoner  objected  were 
"  impartial  "  in  the  proper  legal  sense.  By  examining  the 
origin  of  the  trial  by  jury,  and  tracing  its  history  through 
the  progression  of  civil  and  political  advancement,  to  the 
enlightened  spirit  which  pervades  civilization  at  the  pre- 
sent day,  we  find  that  reason  directed  by  truth  has  done 
much  to  render  it  a  shield  to  the  citizen  against  tyranny 
and  oppression ;  whilst  by  it,  the  observance  of  law  and 
justice  are  enforced.  It  has  kept  pace  with  the  progres- 
sion of  political  liberty.  In  England,  during  the  reigns 
of  James  I.  and  Queen  Anne,  it  was  questioned  whether 
an  offender  charged  with  a  capital  felony  was  entitled  to 
examine  witnesses  on  oath  in  his  favor.  In  the  seventh  year 
of  the  reign  of  William  III.,  witnesses  were  first  allowed 
to  prisoners  on  trials  in  certain  cases.  In  the  first  year  of 
Queen  Anne,  the  right  was  extended  to  all  cases  of 
treason  and  felony.     4  Black.  Com.,  360. 

Counsel  was  not  allowed  to  the  prisoner  in  case  of  high 
treason  till  the  seventh  of  William  III.  It  is  a  feature  of 
English  jurisprudence  now,  that  where  a  man  is  indicted 
for  a  capital  felony,  he  is  not  allowed  counsel  on  the  ques- 
tion of  guilty  or  not  guilty.  But  strange  as  these  facts 
may  seem  to  us  in  the  United  States  at  this  day,  they  are 
scarcely  more  so,  when  properly  considered,  than  that  at 
this  period  of  the  world,  the  English  judiciary  should 
declare  that  a  juror  who  had  formed  and  expressed  au 


412  SUPREME  COURT  CASES, 

Trimble  v.  The  State. 

opinion  against  a  prisoner  at  the  bar  for  trial,  should  not 
be  challenged  for  that  cause.  In  that  country,  and  others 
similarly  constituted  in  government,  where  kingly  power 
still  is  struggling  against  the  light  of  justice,  and  the 
liberty  and  equality  of  man  as  a  citizen;  where  the 
government  is  enthroned  above  and  against  the  people, 
and  made  by  law  independent  of  their  will,  such  a  doctrine 
might  not  seem  strange.  In  this  country,  however,  such 
is  the  spirit  of  our  national  and  state  constitutions  and 
our  statutes,  that  the  citizen  stands  for  security  on  a  highor 
and  more  certain  position  to  maintain  his  rights  when 
arraigned  before  his  country's  tribunal.  In  this  country, 
the  protection  and  elevation  of  the  citizen  is  the  strength 
and  security  of  the  government. 

In  disposing  of  the  question  before  us,  we  will  then  be 
governed  by  the  light  of  American  decisions,  which  best 
accord  with  the  spirit  of  our  constitution.  Then,  is  it 
good  cause  for  a  principal  challenge  to  a  juror,  in  a  capital 
case,  that  he  has  formed  and  expressed  an  opinion  as 
to  the  guilt  or  innocence  of  a  prisoner  on  trial,  when  that 
opinion  has  been  formed  on  facts  gathered  from  rumor, 
and  believed  by  him  so  as  to  bring  his  mind  to  a  con- 
clusion on  the  subject?  In  the  case  of  Tlie People  v.  Ver- 
melyea,  7  Cowen,  121,  the  learned  judge  who  delivered 
the  opinion  of  the  court  says  :  "  It  is  admitted  that  every 
citizen  whether  arraigned  for  crime  or  impleaded  in  a 
civil  action  is  entitled  to  a  trial  by  a  fair  and  impartial 
jury.  The  trial  by  jury  is  justly  considered  an  invaluable 
privilege,  but  it  would  become  a  mockery  if  persons  who 
had  prejudged  the  case  were  admitted  as  impartial  triers. 
All  the  elementary  writers  with  the  exception  of  Chitty 
lay  down  the  proposition  broadly,  that  if  a  juror  has 
declared  his  opinion  beforehand,  it  is  a  good  cause  of 
challenge.  1st  Archbold,  181,  182.  2d  Tidd,  779,  780. 
Bacon,  (title  Juries  E.,)  5.  Bull,K  P.,  ;J07.  Lord  Coke  (1 
Com.  on  Lit.,  155,  156)  says  :  "  He  ought  to  be  least  suspi- 
cious, that  is,  to  be  indifferent,  as  he  stands  unsworn,  and 
then  he  is  accounted  in  law  liber  et  legalis  homo :  other- 


BURLINGTON,  MAY,  1850.  413 

Trimble  v.  The  State. 

wise  he  may  be  challenged  and  not  suffered  to  be  sworn ," 
and  he  proceeds  to  consider  what  is  meant  by  standing 
indifferent:  "manifestly  that  the  mind  is  in  a  state  of 
neuti-ality  as  respects  the  person  and  matter  to  be  tried ; 
that  there  exists  no  bias  for  or  against  either  party  in  the 
mind  of  the  juror  calculated  to  operate  on  him ;  that  he 
comes  to  the  trial  with  a  mind  uncommitted,  and  prepared 
to  weigh  the  evidence  in  impartial  scales."  In  the  case 
cited,  it  is  true  that  the  opinion  of  Norwood,  the  juror,  was 
formed  from  hearing  the  testimony  on  a  former  trial,  not 
from  rumor,  as  in  the  case  at  bar.  But  the  ground  upon 
which  he  was  held  to  be  incompetent  by  the  supreme  court 
was,  that  "he  stated  that,  if  the  evidence  on  the  second 
trial  should  be  the  same  as  on  the  first,  he  should  pro- 
nounce them  guilty."  The  point  is  this,  that  the  mind  of 
the  juror  was  so  prepossessed  as  to  the  case  of  the  prisoner 
by  what  he  had  heard,  that  a  conclusion  was  formed, 
to  remove  which  other  and  stronger  facts  and  circum- 
stances must  be  presented  with  such  irresistible  force  as 
to  compel  him  to  yield  his  position.  We  cannot  perceive 
much  difference  between  a  juror  who  has  formed  an 
opinion  from  the  hearing  of  the  evidence  on  a  former  trial, 
and  one  who  has  formed  it  from  a  recital  of  the  circum- 
stances of  the  case  as  established  by  rumor.  In  both 
cases  the  facts  are  heard  and  believed,  the  mind  prepos- 
sessed, and  an  opinion  formed  against  the  accused  so  con- 
clusively, that  it  is  expressed  and  published  abroad.  A 
man  of  fii'mness  and  decision  of  character,  who  has  thus 
brought  his  mind  to  a  conclusion,  and  expressed  his 
opinion  upon  the  facts  of  a  case  when  not  sworn  as  a 
juror,  will  not  be  likely  to  chauge  that  opinion  when 
acting  under  oath,  unless  the  evidence  adduced  on  trial  be 
so  entirely  different  from  the  facts  by  him  learned  and  acted 
upon,  that  he  will  be  forced  to  it.  Can  such  a  juror  be 
"  wvpartiaV  in  the  sense  of  the  constitution  ?  Is  he  more 
open  to  conviction,  less  biased,  and  better  prepared  in 
mind  to  hear,  weigh  and  fairly  determine  upon  the  case 
anew,  than  the  man  who  stood  by  a  former  hearing,  and 


414  SUPKEME  COURT  CASES, 

Trimble  v.  The  State. 

heard  the  evidence  ?  In  view  of  the  constitutional  right 
of  the  accused,  and  of  sound  reason,  if  the  one  be  incom- 
petent to  act  as  a  juror,  the  other  is  also. 

The  courts  have  in  this  country  decided  that  a  juror  wlio 
had  tried  a  cause  once  would  be  incompetent  to  act  as  such 
upon  a  second  trial.     1  G.  Greene,  534. 

Upon  a  review  of  the  various  decisions  upon  this  and 
assimilated  points,  we  hold  it  to  be  a  good  ground  of  chal- 
lenge for  cause  to  a  juror,  that  he  has  formed  and  expressed 
an  opinion  on  the  question  in  controversy  between  the 
parties  to  a  suit.  In  cases  capitally  criminal,  this  prin- 
ciple should  be  the  more  strictly  observed.  Blake  v.  ]\[iUs- 
paugh,  1  John.,  316;  Pringle  v.  Hughes,  1  Cowen,  432; 
Commonwealth  v.  Knapp,  9  Pick.,  499;  The  People  v. 
Rathbun,  21  Wend.,  542;  The  Commormealth  v.  Rvggell^ 
16  Pick.,  153;   The  People  v.  Bodine,  1  Denio,  281. 

Much  reliance  is  placed  on  the  fact  that  the  juror,  after 
stating  that  he  had  f(^rmed  and  expressed  an  opinion,  upon 
being  examined  further  by  the  court,  added,  "  that  if  Avhat 
he  had  heard  was  true,  he  had  formed  to  opinion ;  if  what 
he  had  heard  was  not  true,  he  had  formed  none."  It  is 
urged  that  his  opinion  was  merely  hypothetical ;  and  this 
being  the  fact,  that  he  stood  indifferent.  We  are  aware 
that  decisions  to  this  effect  have  been  made  by  courts 
entitled  to  high  respect.  But  none  of  these  cases  will  meet 
the  one  at  bar.  Here  the  juror  had  expressed  a  positive 
opinion.  It  does  not  appear  to  have  been  hypothetically 
expressed.  That  expression  must  have  been  based  upon 
an  opinion  previously  formed.  This  explanation  merely 
amounts  to  a  qualification,  which  all  will  admit  who  have 
formed  opinions  upon  what  they  have  heard ;  that  is,  if 
what  they  have  heard  should  not  prove  true,  their  opinions 
might  be  changed.  The  juror  who  has  previously  formed 
and  expressed  an  opinion  upon  the  merits  of  the  case,  can- 
not, when  he  enters  the  box,  stand  there  indifferent,  though 
that  opinion  be  conditional  or  hypothetical.  It  is  clear 
that  the  task  of  removing  his  mental  bias  must  devolve 
upon  the  party  against  whom  it  exists.     He  is  not  free 


BURLINGTON,  MAY,  1850.  415 


Trimble  v.  The  State. 


and  uncommitted.  An  unconstitutional,  unreasonable 
and  therefore  illegal  condition,  is  imposed  upon  tlie  party 
whose  case  has  been  thus  prejudged.  He  must  labor 
under  a  burden  from  which  his  adversary  is  free.  This  is 
at  variance  with  the  spirit  of  our  institutions. 

The  allegation  of  inconvenience  to  judicial  procedure 
in  the  procurement  of  jurors  in  cases  like  this,  where  the 
public  mind  becomes  excited,  insomuch  that  the  minds  of 
citizens  are  liable  to  be  aifected  by  rumor,  cannot  be 
received  as  a  reason  for  dispensing  with  the  observance  of 
a  right  secured  and  made  sacred  by  the  constitution,  and 
which  is  of  vital  importance  to  the  citizen.  They  who  are 
in  this  day  of  civil  and  religious  light  and  liberty  called  to 
make  and  execute  the  law,  should  not  turn  back  to  minister 
to  the  improprieties  of  mankind,  but  rather  to  hold  the 
standard  of  the  constitution  and  the  law  up  to  its  true 
elevation,  that  the  citizen  may  see  it  and  be  raised  to  it. 

If  difficulty  should  occur  in  the  procurement  of  jurors 
who  will  stand  on  the  trial  indifferent  or  impartial,  the 
law  has  wisely  provided  for  such  a  case,  by  allowing  a 
change  of  venue. 

Judgment  reversed. 

Dissenting  ojnnion  by  Kinney,  J.  Agreeing  as  I  do 
with  the  court  upon  most  of  the  points  decided  in  this 
case,  yet  I  am  compelled  to  dissent  from  the  decision  upon 
the  constitutional  question  which  is  here  presented.  A 
decision  upon  this  question  was  not  necessary ;  the  other 
points  raised  by  the  bill  of  exceptions  being  well  taken,  a 
reversal  of  the  case  was  inevitable.  As  a  decision  upon 
the  constitutionality  of  this  extraordinary  legislative  act 
is  one  of  deep  interest  to  the  citizens  of  this  state,  it  is 
with  me  a  matter  of  regret  that  so  important  a  question 
should  be  decided  against  the  rights  of  the  citizen  unless 
absolutely  necessary,  and  then  not  until  after  full  argu- 
ment and  the  most  mature  reflection.  The  consequences 
of  such  a  decision  are  to  my  mind  most  alarming,  A 
wide  door  is  opened  for  the  legislature  of  this  state  to 


416  SUPREME  COURT  CASES, 

Trimble  v.  The  State. 

divide  every  county  for  judicial  purposes,  and  restrict  tlie 
selection  of  grand  and  petit  jurors  to  a  particular  town- 
ship, village,  neigliborhood  or  ward.  Is  the  constitution 
of  Iowa  so  dissimilar  to  other  constitutions?  Is  it  so 
regardless  of  those  great  fundamental  principles  of  civil 
liberty  which  have,  ever  since  the  formation  of  written 
constitutions,  secured  to  the  citizen  an  impartial  trial  by 
a  jury  of  his  peers?  Does  it  repeal  that  clause  in  the 
ordinance  of  1787,  held  in  such  high  veneration  by  all 
jurists ;  and  is  it  possible  that  rights  so  sacred  are  to  be 
enjoyed  at  the  will  and  mercy  of  a  legislative  body? 

As  I  understand  the  constitution,  such  is  not  the  case. 
The  power  contended  for  by  the  court  has  not,  in  my 
opinion,  been  delegated  to  the  legislative  branch  of  the 
government.  I  do  not  hesitate  to  say  that  the  legislature 
may,  for  the  convenience  of  the  people  of  a  particular 
county,  pass  a  law  by  which  the  courts  may  be  held  in 
different  places  in  the  same  county ;  but  when  they  attempt 
to  confine  the  selections  of  jiu-ors  within  geographic  limits 
less  than  the  entire  body  of  the  county,  they  are  assuming 
powers  which  are  not  conferred  by  the  instrument  which 
created  them. 

The  constitution  provides,  "  That  no  person  shall  be  held 
to  answer  a  criminal  offence,  unless  by  presentment  or  in- 
dictment by  a  grand  jury,"  &c.  What  was 'here  intended 
by  the  framers  of  that  instrument  ?  A  body  of  men  selected 
from  a  particular  locality,  or  confined  to  a  prescribed  ton^n- 
s/np,  to  the  exclusion  of  all  the  other  townships  of  the 
county  ?  A  grand  jury  I  have  always  understood  to  be  a 
number  of  men,  not  exceeding  twenty-three,  selected  in 
such  manner  as  should  be  prescribed  by  law,  from  the  body 
of  the  county,  and  the  body  of  the  county  is  the  county  at 
large,  over  which  the  court  has  jurisdiction.  But  the  con- 
stitution \vc:\  defined  the  extent  of  each  county  formed  or  to 
be  formed  in  the  state  by  providing  that  no  new  county  shall 
be  laid  off  hereafter,  nor  old  county  reduced  to  less  con- 
tents than  four  hundred  and  thirty-two  square  miles.  The 
act  of  the  legislature  clearly  violates  the  spirit  and  evident 


BURLINGTON,  MAY,  1850.  417 


Trimble  v.  The  State. 


intention  of  this  clause  of  the  constitution.  Three  town- 
ships are  constituted  by  the  law  a  county  for  judicial  pur- 
poses, which  in  territory  are  less  than  one-fourth  the  area 
prescribed  by  the  constitution.  Grand  and  petit  jurors 
are  to  be  selected  from  these  townships  alone  ;  indict- 
ments found  and  returned,  individuals  tried  and  sentenced, 
and  judgments  rendered  upon  verdicts  of  jurors  thus 
selected.  The  entire  jurisdiction  of  the  court  is  as  com- 
pletely and  perfectly  confined  to  the  three  townships  as  it  is 
to  any  county  over  which  the  court  may  preside.  True  it 
is  that  the  legislature  do  not  attempt  by  name  to  organize 
a  county  out  of  the  townships  of  Jackson,  Des  Moines  .and 
Montrose,  nor  give  them  a  name  and  place  among  the 
counties  of  the  state  as  a  separate  county  organization, 
for  this  would  be  so  flagrant  a  violation  of  the  letter  of  the 
constitution  that  it  would  strike  the  mind  of  every  person 
as  utterly  incompatible  with  the  provisions  of  that  instru- 
ment. But  the  result  in  the  administration  of  justice  is 
the  same,  and  the  constitutional  rights  of  the  citizen  no 
less  infringed  than  if  such  a  separate  county  organization 
had  been  efi'ected.  The  county  is  practically  reduced  to 
a  less  number  of  miles  than  the  constitutional  limits,  and 
the  legislature  are  permitted  by  the  decision  to  pass  laws 
which  in  effect  produce  the  same  results  as  would  that 
legislation  which  the  constitution  directly  and  in  un- 
equivocal terms  forbids. 

The  venire  for  the  grand  jury,  instead  of  being  co-exten- 
sive with  the  county  of  Lee,  is  confined  to  three  townships, 
and  when  the  sheriff  oversteps  these  township  lines  for  the 
purpose  of  serving  his  writ,  he  is  as  much  out  of  his  juris- 
diction •  as  though  he  were  in  another  county  or  state. 
According  to  the  construction  given  the  law,  a  juror  sum- 
moned from  another  township  is  no  more  entitled  to  a  seat 
in  the  jury  room,  although  he  resides  in  the  same 
organized  county,  than  if  he  had  been  summoned  from  the 
adjoining  state  of  Missouri. 

The  law  provides  that  the  grand  and  petit  jurors  to  serve 
at  the  district  courts  held  at  Keokuk  shall  be  selected  from 


418  SUPREME  COURT  CASES, 

Trimble  v.  The  State. 

the  townships  of  Jackson,  Montrose  and  Des  Moines,  and 
that  grand  and  petit  jurors  to  serve  at  the  district  courts 
held  at  Fort  Madison  in  said  county,  shall  be  from  the 
remarining  townships  in  said  county,  and  no  other. 

The  2d  section  provides  that  the  number  of  grand  and 
petit  jurors  for  each  division  of  the  district  court,  and  the 
manner  of  ascertaining  the  proportion  to  each  township, 
and  of  giving  notice  thereof,  returning,  drawing,  &c.,  shall 
be  the  same  for  each  division  of  said  courts  or  districts, 
as  though  they  were  separate  counties.  Thus  the  legisla- 
ture in  express  terms  makes  each  division  of  the  county 
as  com]3lete  andperfect  for  judicial  purposes  as  is  any  con- 
stitutional county  within  the  state.  If  the  legislature  pos- 
sess under  the  constitution  this  power,  then  indeed  have  the 
people  unconsciously,  by  theii"  state  organization,  yielded 
up  some  of  their  dearest  rights  ;  and  the  constitution,  in- 
stead of  proving  a  blessing  and  protection,  has  left  the 
door  wide  open  for  legislative  oppression.  If  the  legisla- 
ture have  the  power  to  form  three  townships  into  a  county 
for  judicial  purposes,  confining  the  selection  of  grand  and 
petit  jurors  to  those  townships,  then  they  have  the  power 
to  embrace  in  a  similar  law  only  one  township ;  and  if  one 
township,  then  a  particular  school  district.  Thus  an  in- 
dictment, instead  of  being  indicted  by  impartial  jurors, 
taken  from  the  6od^  of  the  county^  may  be  indicted  by 
those  selected  from  his  immediate  vicinity,  and  the  in- 
dictment found  under  the  influence  of  excitement,  pre- 
judice or  malice.  The  accused  may  be  imprisoned  upon 
the  indictment  to  await  his  trial,  and  in  this  way  un- 
justly deprived  of  those  natural  liberties  which  the  con- 
stitution, it  would  seem,  has  vainly  attempted  to  protect, 
and  in  the  enjoyment  of  which  he  would  have  been 
secure,  had  the  grand  jury  been  taken  from  the  county 
at  large. 

If  the  legislature  possess  the  power  contended  for  by 
the  court,  then  that  power  is  unlimited,  and  may  be  exer- 
cised over  the  smallest  extent  of  territory  in  ^very  county 
within  this  state. 


BURLINGTON,  MAY,  1850.  410 

Trimble  v.  The  State. 

But  there  is  another,  and,  if  possible,  more  formidable, 
constitutional  objectiou  to  this  law. 

Tlie  hiw  provides  that  the  district  court  at  the  city  of 
Keokuk  shall  have  exclusive  jurisdiction  in  all  criminal 
cases,  and  in  all  appeals  in  civil  causes  from  justices  of  the 
peace  in  the  said  city  of  Keokuk,  and  in  the  townships  of 
Jackson,  Montrose  and  Des  Moines,  in  said  county  of  Lee. 
This  legislation  is  both  local  and  partial.  The  subject 
matter  of  the  law  is  general  and  universal,  and  should  be 
made  so  in  its  application.  A  law  by  which  the  citizen 
is  to  be  tried  for  crime  should  be  general,  bringing  within 
its  corrective  influence  all  the  citizens  of  the  state  alike, 
and  not  partial  and  limited  in  its  operations.  Justice 
should  be  dispensed  from  all  portions  of  the  state  from  the 
same  pure  fountain.  The  individual  who  is  indicted  and 
tried  in  Lee  county,  ought  to  be  indicted  and  tried  by 
the  same  general  law  as  the  one  in  Dubuque  county,  and 
entitled  to  the  same  privilege  and  protection.  All  this  is 
impossible  under  the  law  in  question.  While  the  citizens 
in  all  the  other  counties  of  the  state,  before  they  can  be 
made  to  answer  to  a  criminal  charge,  must  be  indicted  by 
a  grand  jury  selected  from  the  body  of  the  county,  those 
of  Lee  are  compelled  to  submit  to  a  prosecution  upon  an 
indictment  found  by  a  grand  jury  taken  from  three  town- 
ships of  the  county.  While  the  venire  for  the  petit  jury 
to  try  those  charges  is  co-extensive  with  the  county  in 
every  other  county  of  the  state,  in  Lee  it  is  absolutely 
confined  to  the  geogi-aphical  limits  of  certain  designated 
townships. 

Hence  law  and  justice  are  administered  in  Lee  county 
in  one  way,  and  in  the  other  counties  composing  the  same 
judicial  district  in  another  way  entirely  dissimilar. 

Section  6  of  the  bill  of  rights  provides  that  "  all  laws 
of  a  general  nature  shall  have  a  uniform  operation."  The 
act  passed  by  the  legislature  is  of  a  general  nature.  It 
provides  for  the  selection  of  grand  and  petit  jurors,  by 
which  persons  are  to  be  tried  for  the  highest  crimes  known 
to  our  laws.     Instead  of  bein"'  uniform  and  universal  in 


420  SUPREME  COURT  CASES, 

Warburton  v.  Lauman. 

its  operation  upon  all  the  citizens  of  the  state,  it  is  made 
local  and  partial,  confined  to  the  townships  of  a  particular 
county. 

Suppose  the  legislature  had  passed  a  law  by  which  the 
crime  of  petit  larceny  should  be  punished  in  the  county 
of  Lee  by  imprisonment  in  the  penitentiary,  while  in  all 
the  other  counties  it  was  merely  punished  with  confine- 
ment in  the  county  jail,  could  it  admit  of  a  doubt  but 
that  this  act  would  be  contrary  to  the  plain  and  express 
provision  of  the  constitution  ?  I  cannot  think  that  such 
a  law  would  be  more  obnoxious  than  the  one  in  question. 

And  it  may  well  be  doubted  whether  the  act  providing 
for  this  new  and  extraordinary  mode  of  proceeding,  does 
not  infringe  upon  that  clause  of  the  constitution  which 
declares  "that  the  right  of  trial  by  jury  shall  remain  in- 
violate." It  appears  to  me,  that  this  not  only  secm'es  the 
right  of  trial,  but  that  every  citizen  shall  enjoy  that  trial 
according  to  those  great  distinctive  features  which  have 
not  only  always  characterized  a  jury  trial,  but  which  are 
essentially  necessary  to  the  enjoyment  of  the  right  so 
secured. 

J,  C.  Hall^  for  plaintiff  in  error. 

Hollman  and  Stephens,  for  the  state. 


>  *  •  >  t 


WARBURTON  et  al  v.  LAUMAN. 

Where  in  a  mortgage  a  lot  was  by  mistake  designated  as  18  instead  of 
8,  and  was  correctly  described  in  a  subsequent  mortgage,  which  was 
executed  subject  to  the  first,  with  notice  of  the  mistake;  held  that  the  first 
mortgage  should  attach  to  lot  8,  and  be  regarded  as  senior  to  the  sub- 
sequent mortgage. 

In  equity,  mistakes  in  a  deed  will  be  corrected,  as  against  subsequent  pur- 
chasers with  notice. 

Notice  to  an  acknowledged  agent  is  notice  to  his  principal. 


BURLINGTON,  MAY,  1850.  421 


Warburton  v.  Lauman. 


Although  contracts  cannot  be  changed,  they  may  be  corrected  so  as  to  en- 
force the  intention  of  the  parties. 

In  Equity.     Appeal  from  Henry  District  Court. 

Opinion  hy  Kinney,  J.  Lauman  filed  a  bill  in  the  dis- 
trict court  of  Henry  county  against  Albert  Button  et  al., 
to  foreclose  a  mortgage  on  lot  8,  block  4,  in  tbe  town  of 
Salem,  in  said  county,  wliich  was  executed  by  Button,  as 
is  alleged,  by  mistake,  on  lot  18,  block  4,  instead  of  lot  8, 
as  was  intended  by  the  mortgage,  and  claiming  priority 
over  a  junior  mortgage  to  Warburton,  Rossiter  &  Co.,  on 
the  lot  intended  to  be  conveyed  to  said  Lauman,  but  which 
was  subsequently  mortgaged  to  said  Warburton,  Rossiter 
&Co. 

The  bill  alleges  that  Button,  on  the  8th  of  January,  1848, 
became  indebted  to  Lauman  in  the  sum  of  $500,  and  on 
that  date  gave  his  note  for  the  same,  payable  May  1,  1848; 
that  he  executed  a  mortgage  by  agreement  to  secure  the 
payment  of  said  note,  intending  to  mortgage  lot  8,  block 
4,  in  the  town  of  Salem ;  that  Button  owned  said  lot  at  the 
time,  and  resided  upon  it  as  his  homestead,  and  by  mis- 
take and  accident,  the  property  was  described  as  lot  18,  in 
block  4,  instead  of  lot  8,  as  it  should  have  been;  that 
there  is  no  such  lot  as  18  in  said  town  of  Salem.  That 
afterwards,  on  the  10th  of  January,  1849,  said  Button 
being  indebted  to  Warburton,  Rossiter  &  Co.  in  the  sum 
of  $912.50,  and  being  called  upon  to  give  security  for  said 
debt  by  James  Livingston,  acting  as  agent  for  said  firm, 
Baid  Button  and  wife  executed  a  mortgage  to  said  firm 
on  said  lot  8,  block  4,  subject  to  the  mortgage  of  said 
Lauman,  as  is  expressly  mentioned  in  the  mortgage  to 
them.  That  said  Livingston  had  full  notice  of  Lauman's 
debt  and  mortgage,  supposing  it  to  be  on  lot  8,  block  4 ; 
and  said  Livingston  accepted  the  mortgages  to  Warburton, 
Rossiter  &  Co.  with  such  notice,  and  with  the  understand- 
ing that  Lauman's  mortgage  was  a  prior  lien.  That  all 
parties  were  ignorant  of  the  mistake  until  both  mortgages 
had  been  executed,  and  Lauman's  recorded. 


422  SUPREME  COURT  CASES, 

Warburton  v.  Lauman. 

The  answer  of  Button  admits  the  indebtedness  to 
Lauman,  giving  the  note  of  |500,  and  the  security  for  the 
same  by  mortgage.  That  the  consideration  for  the  in- 
debtedness was  a  stock  of  goods,  and  that  Button  pro- 
posed to  give  a  mortgage  on  his  brick  house  and  lot  as  an 
inducement  for  the  credit.  That  when  he  went  to  pur- 
chase said  goods,  he  took  with  him  the  title  deeds  by  which 
he  held  the  lot,  which  was  known  and  described  on  the 
plat  of  said  town  as  lot  8,  in  block  4.  That  respondent, 
after  the  purchase  of  said  goods,  executed  his  note,  and 
the  deed  was  given  to  one  Fayrweather,  with  instructions 
to  make  out  a  mortgage  from  said  respondent  to  said 
Lauman.  That  said  mortgage  was  drawn  up  and  acknow- 
ledged, and  deposited  for  record.  Respondent  further 
states,  that  on  the  9th  or  10th  day  of  January,  1849,  one 
J.  M.  Livingston,  a  clerk  and  agent  of  said  Warburton, 
Rossiter  &  Co.,  applied  to  him  to  give  said  firm  a  mort- 
gage on  said  lot  8,  in  block  4,  to  secure  the  debt  due 
them,  which  respondent  at  first  refused,  on  the  ground  of 
Lauman's  prior  claim,  and  informing  Sjaid  Livingston  that 
he  had  previously  executed  a  mortgage  to  said  Lauman 
on  said  lot,  being  the  brick  house  and  lot  occupied  by 
respondent,  to  secure  the  sum  of  $500,  which  was  then 
due  and  unpaid;  and  that  said  house  and  lot  were  not 
of  sufiicient  value  to  secure  both  debts.  Respondent  at 
length  yielded  to  the  solicitations  of  said  Livingston,  and 
on  the  10th  day  of  January,  1849,  executed  the  mortgage 
in  said  bill  mentioned,  alluding  in  said  mortgage  to 
Lauman's  prior  mortgage.  That  at  the  time  of  executing 
the  mortgage  to  Lauman,  he  did  not,  nor  has  not  since, 
owned  any  other  real  estate  in  said  town  except  the  lot 
aforesaid  ;  and  he  informed  said  Livingston  that  lot  8  was 
the  lot  on  which  he  resided. 

Respondent  further  said,  'that  he  did  not  discover  the 
mistake  made  in  the  mortgage  to  Lauman  until  after  he 
executed  the  one  to  Warburton,  Rossiter  &  Co.  ;  and  that 
he  first  learned  of  the  error  in  the  mortgage  to  Lauman 
by   Livingston   informing  respondent  that  he  discovered 


BURLINGTON,  MAY,  1850.  423 

W'arburton  v.  Laumaii. 

the  mistake  when  lie  went  to  put  his  mortgage  upon  re- 
cord. 

The  answer  of  Rossiter  &  Drake  acknowledges  igno- 
rance of  the  transaction  between  Button  and  Lauman,  and 
of  the  alleged  mistake  in  the  description  of  the  property 
in  the  mortgage  to  Lauman.  They  admit  the  indebted- 
ness to  be  correctly  stated  in  the  bill ;  admit  the  receiv- 
ing of  said  mortgage  to  secure  such  indebtedness  by  Mr 
Livingston,  their  clerk  and  a(/ent,  but  deny  that  they  knew 
of  any  mortgage  to  complainant,  or  had  any  knowledge  of 
any  equitable  lien  by  him  on  lot  8,  in  block  4.  That  they 
cannot  tell  precisely  what  knowledge  Livingston  may  have 
had  when  he  accepted  the  mortgage  from  Button  to  them. 
That  they  reside  in  St  Louis,  and  are  personally  ignorant 
of  the  matters  charged  in  the  bill.  They  insist  that  they 
are  bona  fide  mortgagees  without  notice  of  any  prior  in- 
cumbrance. That  if  all  the  matters  in  the  bill  are  true, 
that  the  complainant  is  not  entitled  to  any  relief  as  against 
them,  but  that  the  mortgage  to  Warburton,  Rossiter  &  Co. 
is  entitled  to  priority  of  satisfaction  out  of  the  lot  of  ground 
thereby  mortgaged. 

The  cause  was  tried  upon  the  bill,  answers,  exhibits 
and  testimony,  and  a  decree  rendered  in  favor  of  Lauman 
for  §579 ;  also  correcting  the  mistake  in  the  mortgage 
from  Button  to  him,  so  that  it  should  be  treated  in  all 
respects  as  a  mortgage  on  lot  8,  in  block  4  ;  also  that  said 
mortgage  from  Button  to  Lauman  have  priority  over  the 
mortgage  from  Button  to  Warburton,  Rossiter  &  Co. 
That  the  equity  of  redemption  to  said  lot  be  foreclosed, 
and  that  the  sheriff  sell  the  same,  and  apply  the  proceeds 
thereof :  first,  to  the  payment  of  costs ;  second,  to  the 
satisfaction  of  the  debt  to  Lauman ;  and  the  residue,  if 
any,  to  be  paid  into  court,  subject  to  the  mortgage  of  said 
Warburton,  Rossiter  &  Co. 

We  think  this  an  equitable  decree.  Button  confesses 
all  the  charges  in  the  bill,  and  the  correctness  of  the  decree 
as  against  him  cannot  be  questioned.  Was  the  mortgage 
to  Lauman  entitled  to  priority  over  the  one  from  Button 


424  SUPREME  COURT  CASES, 

Warburton  v.  Lauman. 

to  Warburton,  Rossiter  &  Co.?  If  the  respondents  took 
their  mortgage  with  a  notice  of  Lauman' s  prior  equitable 
right,  the  doctrine  is  well  settled,  that  it  must  be  held 
subject  to  such  prior  equity.  That  their  acknowledged 
agent  had  such  notice,  the  record  and  testimony  abun- 
dantly establish.  Livingston  was  not  only  informed  of 
the  fact  by  Button,  but  in  the  mortgage  to  the  respond- 
ents, the  prior  mortgage  is  referred  to  in  express  terms. 
This  recital  in  the  mortgage  of  a  prior  incumbrance  is  of 
itself  notice  of  such  incumbrance.  Livingston  was  acting 
in  collecting  and  securing  the  demand  against  Button  as 
the  authorized  and  acknowledged  agent  of  respondents, 
Warburton,  Rossiter  &  Co.  His  acts,  while  within  the 
sphere  of  his  agency,  were  the  acts  of  his  principals.  No- 
tice to  him  was  notice  to  those  for  whom  he  was  acting. 
But  even  if  this  were  not  so,  the  reference  of  a  prior  exist- 
ing mortgage  in  the  conveyance  would  be  sufficient  to  charge 
the  purchasers.     2  Powell  on  Mortgages,  573  and  notes. 

But  notwithstanding  this  notice,  and  that  respondents 
received  the  mortgage  with  the  understanding  and  expect- 
ation that  it  was  to  be  subject  to  the  prior  one  to  Lauman, 
yet  as  no  such  prior  one  did  in  fact  exist  on  the  lot  mort- 
gaged to  Warburton,  Rossiter  &  Co.,  therefore  it  is  said 
the  latter  must  take  priority.  This  would  be  true  if  it 
had  not  been  the  bona  fide  intention  of  Button  to  have 
mortgaged  lot  8,  and  Lauman  to  have  received  a  mort- 
gage on  said  lot,  and  if  the  mistake  in  the  description  had 
not  been  entirely  unintentional.  But  it  is  the  especial 
prerogative  of  courts  of  equity  to  correct  such  mistakes, 
and  not  only  to  carry  out  the  intention  of  the  parties 
when  fully  understood,  but  to  place  them  as  near  as  pos- 
sible in  the  position  which  they  assumed  to  occupy  at  the 
time  of  the  contract.  Could  Button  have  taken  advan- 
tage of  this  mistake  ?  if  not,  is  Lauman' s  equity  less  be- 
cause his  mortgagors,  with  full  notice  of  the  equity,  attempt 
to  do  so  ?  What  did  they  expect  to  gain  by  the  convey- 
ance ?  Most  certainly  nothing  more  than  a  junior  incum- 
brance.    Would  it  be  equitable  to  give  them  more  at  the 


BURLINGTON,  MAY,  1850.  425 

Warburton  v.  Lauman. 

sacrifice  of  an  equitable  interest  which,  beyond  all  ques- 
tion, did  exist  at  the  time  of  their  conveyance,  and  to 
which  they  had  a  direct  reference  at  the  time  they  re- 
ceived it.  The  error  in  the  deed  was  not  the  fault  of 
Button  or  Lauman,  but  the  mistake  of  Fayrweather,  who 
drafted  it. 

As  appears  from  the  record,  both  parties  supposed  that 
tlie  lot  was  numbered  correctly  in  the  mortgage.  Lot  8 
was  clearly  intended  to  have  been  conveyed.  Button 
owned  no  other  lot  in  Salem.  Livingston  first  discovered 
the  mistake  in  the  mortgage  to  Lauman,  and  in  a  letter 
to  Button,  which  is  made  an  exhibit  in  the  case,  speaks  of 
the  ''  mortgage  on  lot  18,  instead  of  8,  as  it  should  be," 
So  that  the  misdescription  of  the  lot  is  not  only  fully 
shown  to  have  been  a  mistake,  but  it  is  recognised  and 
admitted  as  such  by  the  agent  of  Warburton,  Rossiter  & 
Co. 

Will  courts  of  equity  relieve  such  mistakes  against  sub- 
sequent purchasers  for  a  valuable  consideration,  if  such 
purchaser  had  notice  of  such  prior  equitable  incumbrance, 
and  there  is  a  mistake  ?  The  following  authorities  clearly 
establish  the  affirmative  of  this  proposition.  1  Story's 
Eq.,  179,  165 ;  2  Pow.  on  Mortgages,  532,  note  a  and  e;  1 
John.  Ch.,  300;  3  Pier  Williams,  307;  1  Maddock  Ch.,  65. 

In  the  case  of  Governeur  v.  Titus,  6  Paige,  347,  the 
owner  of  the  north-east  corner  of  a  lot  of  land  sold  the 
same,  but  by  mistake  described  it  as  the  north-west  corner 
of  the  lot,  (belonging  to  another  person,)  and  the  pur- 
chaser afterwards  sold  the  same,  and  made  the  same  mis- 
take in  his  deed.  Subsequent  to  this  conveyance  a  judg- 
ment was  obtained  vs.  the  first  grantor,  and  the  kind 
intended  to  have  been  conveyed  purchased  on  such  judg- 
ment by  the  judgment  creditor,  at  which  time  the  mistake 
in  the  deed  was  discovered,  and  the  purchaser  had  notice 
thereof.  A,  the  fii-st  grantor,  and  B,  who  had  conveyed 
to  C  with  the  same  mistake  in  the  deed,  then  joined  in  a 
new  conveyance  or  deed  of  confirmation  to  C,  in  which 
the  premises  were  correctly  described.  The  alleged  mistake 
Vol.  IL  28 


426  SUPREME  COURT  CASES, 

Warburton  v.  Lauman. 

being  fully  establislied,  and  the  sheriff's  deed  not  having 
Leeu  made  to  the  purchaser  upon  execution,  the  court  dis- 
charged the  premises  from  the  lien  of  the  judgment,  and 
granted  a  perpetual  injunction  against  the  claim  of  the 
purchaser  under  the  judgment.  Courts  of  equity  will 
ever,  unless  the  transaction  is  tainted  with  fraud,  relieve 
all  such  errors  of  fact  against  subsequent  purchasers,  with 
notice  of  antecedent  intended  conveyances.  In  the  above 
case  the  judgment  was  obtained  without  notice,  Avhich 
became  a  lien  upon  the  premises  intended  to  have  been 
conveyed,  but  as  the  purchase  upon  execution  was  made 
with  notice,  the  lien  was  properly  set  aside,  and  the  deed 
enjoined.  "  A  written  agreement  may  contain  more  or 
less  than  the  parties  intended,  or  something  different  from 
their  intentions.  These  mistakes  may  happen  either  from 
carelessness  on  the  part  of  the  draftsman,  or  ignorance  as 
to  the  legal  or  proper  mode  of  executing  the  instrument. 
In  either  case,  when  made  out  by  proofs  entirely  satisfac- 
tory, equity  will  reform  the  contract  so  as  to  make  it  con- 
formable to  the  ijrecise  intent  of  the  parties." 

While  courts  of  equity  will  not  make  new  contracts  for 
parties,  or  change  them  from  their  original  intention  and 
purpose,  yet  they  will  reform  and  correct  such  contracts, 
not  only  as  between  the  parties,  so  as  to  carry  out  their 
intention,  but  as  against  subsequent  purchasers  with 
notice.  It  is  the  intention  of  the  parties  that  will  prevail 
in  courts  of  chancery,  in  preference  to  the  mere  act,  when 
by  that  act  the  object  of  the  parties  could  not  be  attained. 

By  carrying  out  the  intention  of  Button  and  Lauman, 
by  reforming  Lauman's  mortgage,  (in  order  to  do  so,) 
Warburton,  Rossiter  &  Co.  are  placed  in  no  worse  position 
than  they  supposed  at  the  time  they  obtained  their  deed. 
They  secured  their  mortgage  with  the  express  understand- 
ing that  it  was  to  be  subject  to  Lauman's  prior  equity ; 
and  as  that  equity  actually  existed,  to  give  theirs  priority 
would  be,  not  only  to  defeat  the  intention  of  the  parties  in 
giving  and  receiving  it,  but  would  be  equivalent  to  making 
a  new  contract  for  them. 


BURLINGTON,  MAY,  1850.  427 

Price  &  Co.  v.  Alexander  &  Co. 

Pure  equity  cannot  be  meted  out  to  Warburton,  Ros- 
siter  &  Co. ,  except  by  giving  priority  to  Lauman's  incum- 
brance, as,  if  the  mortgage  to  W.,  R.  &  Co.  is  to  be  first 
satisfied,  they  obtain  more  than  they  stipulated  for  in  the 
deed  from  Button  to  them. 

Hence,  by  giving  Lauman's  mortgage  priority,  equal 
and  exact  justice  is  done  to  all  parties.  They  are  placed 
by  such  decree  in  the  position  they  assumed  to  occupy  at 
the  time  the  respective  conveyances  were  executed. 

Decree  a£Qxmed. 
J),  Rorer,  for  appellants. 

Grimes  and  Starr  and  Morton^  for  appellee. 


PRICE  <fe  CO.  V.  ALEXANDER  &  CO. 

Where  A  contracts  with  B  for  a  share  of  the  profits,  as  such,  in  any  business 
transaction,  he  would  be  considered  a  partner  as  to  third  persons ;  but 
where  he  was  to  receive  a  share  of  the  profits  as  compensation  for  serrices, 
as  between  themselves,  they  would  not  be  considered  partners. 

An  instrument  under  seal,  executed  by  one  partner,  and  assented  to  by  the 
other,  will  bind  both  as  a  firm. 

The  rule  that  one  partner  cannot  bind  his  co-partner  by  sealed  instruments, 
does  not  prevail  if  the  instrument  would  be  equally  valid  without  seal 
and  within  the  scope  of  the  partnership  l)usiiiess. 

Where  special  instructions  asked  were  included  in  those  of  a  more  geueral 
character,  it  was  not  error  to  refuse  them. 

Eeror  to  Lee  District  Court. 

Opinion  by  Greene,  J.  A.  Alexander  &  Co.  commenced 
this  suit  before  a  justice  of  the  peace,  and  obtained  a  judg- 
ment against  Joseph  Price  &  Co.  The  case  was  taken  to 
the  district  court  by  apj)eal,  where  Alexander  &  Co.  again 
obtained  a  verdict  and  judgment  for  $75,  the  amount 
rendered  before  the  justice. 


428  SUPREME  COURT  CASES, 

Price  &  Co.  v.  Alexander  &  Co. 

In  the  court  below,  the  plaintiffs  offered  certain  articles 
of  agreement  made  under  seal  by  the  respective  firms  of 
"  A.  Alexander  &  Co."  and  "  Joseph  Price  &  Co."  on  the 
22d  of  March,  1848.  The  agreement  stipulated  that 
Alexander  &  Co.  should  appropriate  such  portion  of  their 
wharf  and  warehouse  in  the  city  of  Keokuk  as  might  be 
necessary  to  carry  on  the  storage  and  forwarding  business 
during  the  navigable  season  of  1848,  and  permit  said 
Price  &  Co.  to  keep  their  wharf  boat  in  front  of  said  wharf, 
to  be  used  by  them  in  the  storage  and  forwarding  business 
during  the  same  period.  The  respective  firms,  as  parties 
to  the  agreement,  were  required  to  keep  books,  and  enter 
therein  the  daily  transactions  of  then  respective  opera- 
tions in  said  business.  They  also  agreed  to  conduct  the 
"  business  at  their  respective  places  aforesaid,  upon  their 
own  capital,  and  at  their  own  expense,  and  each  to  bear 
and  sustain  any  and  all  losses  that  might  accrue  to  them 
respectively  in  said  business."  It  was  also  stipulated,  in 
the  language  of  the  agreement,  that  they  should  "  pay  over 
to  each  other  mutually,  after  the  date  of  this  instrument, 
,one  half  of  the  clear  nett  profits  realized  by  said  parties 
from  the  storage  business  respectively.  It  is  understood, 
however,  that  any  and  all  moneys  received  by  said  Price 
&  Co.  from  storage  during  the  time  they  may  be  at  another 
landing  dming  high  water,  shall  be  used  and  disposed  of 
by  the  said  Price  &  Co.  exclusively."  It  was  then 
agreed  that  if  either  party  should  fail  to  pay  the  money  as 
specified,  the  other  party  might,  at  his  option,  terminate 
the  contract.  Price  &  Co.  agreed  not  to  sell  certain 
articles  at  wholesale,  and  also  to  pay  Alexander  &  Co. 
$25  as  a  bonus  for  all  the  business  they  might  tran- 
sact by  the  storage  of  emigrants'  furniture,  &c.  To  the 
admission  of  this  agreement  in  evidence  the  defendants 
interposed  two  objections  :  1.  Because  the  contract  could 
not  be  effectual,  as  one  partner  could  not  bind  another 
under  seal,  and  as  the  agreement  constituted  a  partner- 
ship, wherein  one  partner  could  not  sue  another  ;  and 
2.  Because   the   agreement   was   not   signed   by  the  in- 


BURLINGTON,  MAY,  1850.  429 

Price  &  Co.  v.  Alexander  &  Co. 

dividual  parties  to  tliis  suit,  but  by  the  resi)ective  firms ; 
and  therefore,  as  one  member  of  a  firm  cannot  bind  his  co- 
partner under  seal,  tlie  partners  not  signing-  tlic  agreement 
were  not  bound.  But  tlie  court,  overruling  the  objections, 
admitted  the  agreement  in  evidence.  It  is  now  contended 
that  this  ruling  of  the  court  Avas  erroneous ;  and  this  in- 
volves two  questions  for  adjudication  :  1.  The  character  of 
tlio  contract;  and  2.  The  liabilities  of  the  parties. 

1.  As  a  general  rule,  a  partnership  creates  a  com- 
muility  of  interest,  of  duty  and  of  responsibility  among 
the  members  of  the  firm.  Such  an  association,  when  not 
qualified  or  limited  in  its  character,  nuikes  each  member  a 
participant  in  the  profits,  and  a  contributor  to  the  losses 
resulting  from  the  operations  of  the  partnership.  The 
authorities  are  uniform  upon  this  point.  But  the  books 
show  a  manifest  distinction  in  partnerships  as  existing 
between  the  parties  themselves,  and  as  existing  between 
them  and  others.  There  may  be  a  connection  in  business 
between  A  and  B,  in  which  they  would  bo  legally  adjudged 
partners  in  relation  to  others,  but  not  so  as  between  them- 
selves. C  S.  &  R.,  333  ;  9  John.,  489 ;  17  ib.,  40 ;  6  Pick., 
372  ;  12  Vt.,  291  ;  Gow.  on  Part.,  11. 

Ordinarily,  where  a  person  contracts  for  a  share  of  the 
profits,  as  such,  in  any  business  enterprise,  he  has  been 
considered  a  partner  as  to  third  persons,  even  if  stipulated 
in  the  contract  that  he  should  not  be  liable.  This  general 
rule  is  predicated  upon  priuciples  of  })ublic  policy  in  rela- 
tion to  commercial  transactions,  and  upon  the  proposition, 
sanctioned  by  nutuial  justice,  that  he  who  shares  in  the 
profits,  ought  also  to  contribute  to  the  losses  of  the  busi- 
ness, by  paying  creditors  for  furnis'iiiug  means  out  of 
which  those  profits  might  have  bee  a  realized.  To  this 
rule,  however,  there  are  many  nice  qualifications  and  ex- 
ceptions, chieily  pertaining  to  profits  acquired,  not  in  the 
capacity  of  a  [)artner,  but  in  the  character  of  an  agent  or 
otherwise,  as  compensation  for  labor  or  benefits  furnished; 
not  as  a  specific  interest  in  the  business,  but  under  the 
stipulation  that  he  should  be  rewarded  by  a  given  sum. 


430  SUPREME  COURT  CASES, 

Price  &  Co.  v.  Alexander  &  Co. 

in  proportion  to  the  quantum  of  profits,  without  being 
clothed  with  the  rights,  j)owers,  and  duties  of  a  partner. 
But  if  the  arrangement  secures  to  the  party  a  specific  in- 
terest in  the  profits  themselves,  as  profits,  in  contradistinc- 
tion to  a  stipulated  portion  of  them  as  compensation,  he 
incurs  the  liabilities  of  a  partner.  In  Louis  v.  Afore/iall, 
12  Conn.,  69,  A  entered  into  an  agreement  with  B  to  fur- 
nish a  full  supply  of  wool  for  his  factory  for  two  years  ;  B 
was  to  manufacture  the  wool  into  cloths,  and  A  have  55 
per  cent,  of  the  nett  proceeds,  and  B  45  per  cent.,  they 
contributing  in  the  like  proportions  for  warp,  insurance, 
&c.  In  an  action  by  C  against  A  and  B  as  partners,  for 
work  in  the  factory,  it  was  held  that  they  were  not  liable 
as  partners.  In  Ambler  v.  Bradley/,  6  Vt.,  119,  it  was  held 
that  where  A  owned  a  mill,  and  agreed  with  B  to  work  it 
for  half  the  gross  earnings,  they  were  not  partners. 

It  was  held  in  Bice  v.  Austin,  17  Mass.,  197,  that  an 
agreement  between  two  persons  to  share  in  tiie  profits  of 
an  adventure  or  concern  does  not  necessarily  constitute 
them  co-partners  in  that  respect.  See  also  upon  this  point, 
Baxter  v.  Rodman,  3  Pick.,  435;  Cutler  v.  Winsor,  6  ib., 
335;  Gallop  Y.  Newman,  7  Pick.,  282;  Denny  v.  Cabot, 
6  Met.,  82.  Bowman  v.  Bailey,  10  Vt.,  170,  was  a  case 
where  one  party  furnished  a  boat,  and  the  other  sailed  it, 
with  an  agreement  to  divide  the  gross  profits ;  and  it  was 
held  that  this  did  not  constitute  a  partnership.  See  also 
Dunham  v.  Rogers,  1  Barr. ,  255 ;  Burlde  v.  Echart,  1 
Denio,  337;  Clements.  Hadlock,  13  N.  H.,  185;  Bradley 
V.  White,  10  Met.,  303;  Johnson  v.  Miller,  16  Ohio,  166; 
Story  on  Part.,  §§  34-36. 

Under  the  guidance  of  these  authorities,  and  those  cited 
by  counsel  for  the  defendants  in  error,  the  character  of  the 
agreement  in  the  present  case  cannot  well  be  mistaken. 
In  that  instrument,  the  leading  ingredients  of  a  partner- 
ship are  wanting.  It  was  the  manifest  intention  of  the 
parties  that  the  relation  of  partners  should  not  subsist 
between  them.  It  is  expressly  stipulated  that  the  busi- 
ness of  each  party  should  be  conducted  by  themselves, 


BURLINGTON,  MAY,  1850.  43i 

Price  &  Co.  v.  Alexander  &  Co. 

upon  their  own  capital,  at  their  own  expense,  and  subject 
to  their  own  los>;cs.  Price  &  Co.,  for  the  privilege  of 
having-  their  Avhaif  boat  at  the  wharf  of  Alexander  &  Ce»., 
and  for  half  the  receipts  of  their  storage  business,  stipu- 
late to  i)ay  them  a  sum  equal  to  one-half  of  their  nett 
receipts  from  the  storage  and  forwarding  business,  and 
also  a  bonus  of  $25  for  all  business  they  might  transact 
by  the  storage  of  emigrants'  furniture,  &c.  Under  the 
analogies  of  the  foregoing  cases,  it  may  be  well  doubted 
whether  this  agreement  would  constitute  a  partnership 
as  to  third  parties  ;  but  obviously,  as  between  themselves, 
inter  se,  the  relation  of  co-})artners  never  was  contem- 
plated. The  one  party  had  no  right,  control  or  manage- 
ment over  the  business  of  the  other,  nor  incurred  either 
loss  or  liability.  In  order  to  constitute  a  partnership, 
inter  se,  there  must  be  a  sharing  in  losses  as  well  as  in 
profits.  In  Vandei'burgh  v.  Hull,,  20  Wend.,  70,  such 
were  considered  the  indispensable  requisites  to  any  part- 
nership; and  in  Lcutry  v.  Brooks,  2  M'Cord,  421,  where 
there  was  no  mutual  interest  in  the  capital  invested,  and 
no  stipulation  for  mutual  loss,  it  was  not  considered  a  co- 
partnership. Chancellor  Walworth,  in  Chase  v.  Barrett, 
4  Paige,  IGO,  decided  ''  that  to  constitute  a  partnership,  as 
between  the  i)arties  themselves,  there  must  be  a  joint-own- 
ership of  the  partnership  funds,  according  to  the  intention 
of  the  parties,  and  an  agreement,  either  expressed  or  im- 
plied, to  ])articipate  in  the  [jrofits  or  losses  of  the  business, 
either  rateably  or  in  some  other  proportion  to  be  fixed 
upon  by  the  co-partners."  Ap})ly  this  test  to  the  contract 
in  this  case,  and  it  will  be  obvious  that  no  partnership 
subsisted  between  the  parties.  It  was  manifestly  the  in- 
tention of  the  parties  that  no  such  association  should 
exist  between  them.  It  Avas  an  arrangement  in  which 
benefits  were  to  be  realized  by  one  firm  from  the  other, 
and  conii)ensation  conferred  in  proportion  to  the  profits  of 
a  particular  branch  of  their  respective  business  operations; 
and,  unlike  a  partnership  arrangement,  the  one  party  was 
expressly  excluded  from  any  participation  in  the  business 


432  SUPHEME  COURT  CASES, 

Price  &  Co.  v.  Alexander  &'Co. 

of  the  other,  contributed  nothing,  and  incurred  no  loss. 
The  stipulations  in  the  agreement,  its  qualifications  and 
guarded  phraseology,  are  repugnant  to  essential  elements 
of  a  partnership  inter  se,  and  show  that  it  could  not  have 
been  contemplated  by  the  parties.  Judge  Storj-,  in  his 
work  on  Partnership,  §  30,  saj's :  "It  may  be  laid  down 
as  a  general  rule,  that  in  all  such  cases  no  partnership 
will  be  created  between  the  parties  themselves,  if  it  would 
be  contrary  to  their  real  intentions  and  objects."  We 
conclude,  then,  as  between  the  parties,  that  no  partnership 
existed,  and  therefore  the  agreement,  in  that  respect,  was 
admissible  in  evidence. 

2.  The  agreement  was  next  objected  to  on  the  ground 
that  it  was  not  a  contract  between  the  parties  to  this  suit, 
as  one  member  of  a  firm  cannot  bind  his  co-partner  under 
seal.  This  rule,  in  its  general  application  to  common  law 
proceedings,  cannot  be  disputed.  But,  originating  chiefly 
from  technical  reasons  connected  with  the  doctrine  of 
agency,  it  has  been  considerably  relaxed  by  recent  deci- 
sions, in  order  to  accommodate  the  advancement  of  com- 
mercial intercourse,  and  the  exigencies  of  business  associ- 
ations. 

It  now  appears  to  be  well  settled  that  a  sealed  instru- 
ment made  by  one  partner  in  the  name  of  the  firm,  is 
binding  upon  his  co  partners  who  assent  to  the  contract 
before  its  execution,  or  subsequently  adopt  it  either  by 
parole  or  other  evidence  of  ratification.  Cad^  v.  Shepherd, 
11  Pick.,  405  ;  Clement  v.  Brush,  3  John.  Cas.,  180 ;  Bond 
V.  'Ailkin,  6  Watts.  &  Serg.,  165.  In  Swan  v.  Stedmdn,  4 
Met.,  548,  it  was  held  that  the  adoption  of  such  an  instru- 
ment might  be  shown  by  mere  silent  assent  thereto. 

It  now  remains  to  be  seen  whether  John  Rivereau,  of 
the  firm  of  A.  Alexander  &  Co.,  and  Silas  Haight,  of  the 
firm  of  Joseph  Price  &  Co.,  have  sufficiently  assented  to 
and  adopted  the  instrument  signed  by  their  respective 
partners  in  the  company  names.  So  far  as  Rivereau  is 
concerned,  the  simple  fact  that  the  suit  was  brought  in 
the  partnership  name,  amounts  to  a  sufficient  adoption  of 


BURLINGTON,  MAY,  1850.  433 

Price  &  Co.  v.  Alexander  &  Co. 

the  instrument  on  his  part,  and  precludes  the  defendants 
from  denying  his  participation  in  its  execution.  Dodge 
V.  McKay ^  4  Ala.,  346.  In  relation  to  Haight,  it  appears 
hy  the  hill  of  exceptions  that  the  plaintiffs  below  intro- 
duced him  as  their  witness,  and  among  other  things 
proved  by  him,  that  the  firm  of  Joseph  Price  &  Co.  con- 
sisted of  said  Price  and  himself;  that  after  said  agreement 
was  drawn  up,  it  was  shown  to  him,  and  he  assented  to  its 
correctness,  and  was  satisfied  with  its  provisions,  and  that 
under  it  the  respective  parties  went  on  and  transacted 
business.  That  this  amounted  to  a  full  sanction  and  rati- 
fication of  the  agreement  by  all  the  parties,  cannot,  we 
think,  be  questioned. 

Again^  it  appears  by  the  testimony  of  Haight,  that  the 
said  firms  were  engaged  in  the  storage,  forwarding  and 
commission  business  at  the  time  the  contract  was  entered 
into,  and  it  may  therefore  be  very  correctly  regarded  as 
within  the  scope  of  their  commercial  dealings,  as  an  agree- 
ment which  would  have  been  equally  binding  upon  the 
parties  without  a  sealed  or  even  a  written  instrument. 
It  could  not,  consequently,  be  vitiated  by  the  addition  ot 
a  seal.  1  Brock.,  456;  3  U.  S.  Dig.,  393,  §  26  ;  Deckard 
V.  Case,  5  Watts,  22.  In  Tapley  v.  Butterjield,  1  Metcalf, 
515,  it  was  held,  that  one  partner  has  authority,  without 
even  the  knowledge  of  his  co-partner,  to  mortgage  the 
whole  stock  in  trade,  to  secure  a  particular  creditor  of  the 
firm ;  it  was  also  held,  that  the  rule  that  one  partner  can- 
not bind  his  co-partner  by  deed,  does  not  prevail  when  he 
thereby  conveys  property  of  the  firm  which  he  might  have 
conveyed  without  such  deed ;  and  hence  it  was  concluded 
by  the  court,  in  that  case,  that  the  sealed  mortgage  of  the 
goods  executed  by  one  partner  in  the  name  of  the  firm 
bound  both  of  them,  and  constituted  a  valid  lien  upon  the 
property.  These  authorities  show  to  what  extent  the  rule 
in  question  is  relaxing  in  its  adaptation  to  business  opera- 
tion, and  they  also  support  the  conclusion  to  which  we  have 
arrived  in  this  case,  that  all  the  parties  to  this  suit  became 
parties  to,  and  were  held  by,  the  instrument  in  question. 


434  SUPREME  COURT  CASES, 


Price  &  Co.  v  Alexander  &  Co. 


3.  Evidence  was  given  by  the  defendants  below,  show- 
ing that  the  plaintiffs,  after  the  contract  was  entered  into, 
ceased  to  do  business  as  forwarding  and  commission  mer- 
chants, and  that  in  consequence  the  defendants  had  been 
obliged  to  hire  additional  hands,  and  also  that  by  virtue 
of  a  city  ordinance,  they  had  been  compelled  to  pay  $47 
wharfage. 

In  relation  to  this  evidence,  instructions  were  given,  to 
which  objections  are  urged.  We  have  carefully  examined 
the  several  instructions,  as  given,  refused  or  qualified  by 
the  court,  and  can  see  nothing  that  will  justify  a  reversal 
of  the  proceedings.  Upon  the  first  branch  of  the  evidence 
the  jury  were  instructed,  that  if  plaintiffs  abandoned  the 
contract  before  any  violation  thereof  by  the  defendants, 
that  they  also  had  a  right  to  abandon  it  on  their  part,  pro- 
vided the  abandonment  of  plaintiffs  was  not  by  their  con- 
sent or  at  their  request.  They  were  also  instructed,  that 
if  the  plaintiffs  neglected  to  perform  their  part  of  the  con- 
tract, in  consequence  of  which  the  consideration  of  the 
agreement  failed,  they  could  not  recover.  Tliese  instruc- 
tions, we  think,  comprise  all  that  was  material  for  the 
defendants  below,  and  all  they  should  requii'e  in  a  just  sub- 
mission to  the  jury,  or  in  a  fair  adjudication  of  theu*  rights. 
Upon  the  other  point,  the  court  insti'ucted  the  jury  that 
if,  after  the  contract,  an  ordinance  was  passed  creating  a 
liability  on  either  party,  by  way  of  taxation  or  license, 
and  if  the  parties  still  continued  to  act  under  the  contract 
as  they  did  prior  to  the  passage  of  such  ordinance,  it  could 
not  be  set  up  in  avoidance  of  the  contract.  We  think  the 
plaintiff"  in  error  has  no  reason  to  complain  of  this  instruc- 
tion. It  is  stipulated  in  the  contract,  that  it  should  not 
interfere  with  any  ordinance  that  might  be  passed  rela- 
tive to  the  landing,  the  wharf,  and  wharf  boats.  It  appears, 
then,  that  such  ordinances  were  anticipated  when  the 
agreement  was  entered  into,  and  still  the  parties  agreed 
that  they  should  respectively  conduct  their  own  business, 
at  their  own  expense,  and  sustain  their  own  losses.  Any 
tax  for  license  upon  the  business  of  either  firm  would  come 


BURLINGTON,  MAY,  1850.  435 

Greenough  v.  Wiggington  and  Wife. 

under  the  denomination  of  expenses,  which,  according  to 
the  agreement,  shouhl  be  defrayed  by  the  party  incurring 
tliem.  And  agreeable  to  the  instruction,  if  the  party  vol- 
untarily continues  in  the  transaction  under  such  additional 
expense,  it  shows  an  acquiescence  in  it,  which  will  prevent 
an  avoidance  of  the  contract. 

It  is  true  that  a  portion  of  the  special  instructions  asked 
for  in  this  case  might  have  been  given  with  propriety, 
but  as  the  substance  of  those  special  instructions  were 
included  in  those  of  a  more  general  character,  there  was 
no  impropriety  in  refusing  them.  Gentry  v.  Borgis,  6 
Blackford,  261. 

Judgment  afidi-med. 

J.  C.  Hall,  for  plaintiff  in  error. 

W,  J,  Cochran  and  C,  E.  Stone,  for  defendants. 


•>•••< 


GREENOUGH  v.  WIGGINGTON  AND  WIFE. 

Where  the  husband  and  wife  jointly  contract  for  the  erection  of  a  building 
on  the  land  of  the  wife,  a  mechanics'  lien  under  the  statute  may  be  en- 
forced aiiainst  the  property. 

In  a  proceeding  for  a  mechanics'  lien,  rules  both  of  law  and  of  equity  are 
authorized. 

Law  and  equity  act  in  concert,  so  far  as  general  personal  engagements  of 
man  and  woman  are  concerned. 

Generally  a  debt  contracted  by  a  woman  during  coverture  is  prima  facie 
evidence  to  charge  her  separate  estate. 

Erkor  to  Des  Moines  District  Coxjrt. 

Opinion  by  GtReene,  J.  Bill  filed  by  the  plaintiff 
against  Wiggington  and  wife  for  a  mechanics'  lien.  The 
bill  shows  that  the  defendants,  during  coverture,  made  a 
contract  with  the  plaintiff  for  the  erection  of  a  house  upon 


436  SUPREME  COURT  CASES 


Greenough  v.  Wiggington  and  Wife. 


a  lot  in  the  city  of  Burlington ;  that  the  lot  was  owned 
by  Ann  Wiggington  before  her  marriage,  and  still  belonged 
to  her ;  and  that  the  house  was  completed  according  to 
contract,  but  that  payment  had  not  been  made.  To  this 
bill  the  defendants  filed  a  demurrer,  which  was  sustained 
by  the  court  below. 

In  support  of  that  decision,  it  is  now  urged  that  the 
wife  is  not  bound  by  any  contract  made  during  coverture, 
and  that  her  title  to  the  land  cannot  be  incumbered  by  a 
mechanics'  lien  under  such  contract.  Upon  a  superficial 
view  this  position  would  appear  plausible ;  for,  as  a  gen- 
eral rule,  feme  coverts  cannot  make  valid  contracts  which 
courts  of  law  would  enforce  against  them.  But  to  this 
rule  there  are  exceptions,  even  upon  common  law  prin- 
ciples, besides  those  which  are  interposed  by  statute. 

This  action  was  commenced  under  om-  statute  relative 
to  mechanics'  liens,  and  is  authorized  on  all  contracts 
made  between  the  owner  of  any  tract  of  land  or  town  lot, 
or  the  lessee  thereof,  with  the  owner's  knowledge  or  con- 
sent, on  the  one  part,  and  any  person  on  the  other  part, 
for  furnishing  labor  or  materials  to  erect  or  rejjair  any 
house,  mill,  or  machinery.  The  contract,  as  set  forth  in 
the  bill  at  bar,  was  not  only  made  with  Ann,  the  separate 
owner,  but  also  with  her  husband,  who  could  claim  no 
greater  right  than  a  lessee,  entitled  to  rents  and  profits  for 
life,  and  the  building  was  erected,  not  only  by  the  con- 
sent, but  by  the  direct  agency  and  procurement  of  both, 
and  for  the  especial  benefit  of  the  wife's  separate  estate. 
All  who  were  interested  in  the  lot  participated  in  the 
contract,  by  which  the  value  of  the  land  was  greatly  en- 
hanced at  the  expense  of  the  plaintiff.  In  all  such  cases 
the  statute  clearly  provides  a  lien  to  the  party  fm^nishing 
the  labor  and  materials,  without  any  reference  to  the  sex 
or  condition  of  the  party  owning  the  land. 

The  husband  and  wife  had  the  power  to  sell  the  real 
estate  by  joint  conveyance.  Stat,  of  1846,  p.  4,  §  4.  Nor 
would  their  power  to  incumber  the  estate  by  mortgage  be 
questioned.     How  then  can  it  be  doubted  that  they  had 


BURLINGTON,  MAY,  1850.  437 

Greenough  v.  Wiggington  and  Wife. 

power  to  make  contracts  by  which  the  land  would  be  lield 
responsible  for  improvements  made  upon  it  ? 

The  right  of  a  married  woman  to  own  and  possess  real 
estate  as  of  her  own  property,  is  expressly  acknowledged 
by  statute.  Whether  she  acquire  the  title  before  or  after 
coverture,  "  she  shall,"  in  the  language  of  the  law, 
''  possess  the  same  in  her  own  right."  Laws  of  1846,  p. 
4,  §  2.  True  the  control  and  management,  the  annual 
productions,  rents  and  profits,  go  to  the  husband  as  at 
common  law.  But  all  suits  affecting  the  property  or  pos- 
session must  be  prosecuted  or  defended  in  the  joint  names 
of  the  husband  and  wife.  To  carry  out  the  spirit  of  this 
act,  it  must  follow  that  the  title  to  the  land  can  only  be 
affected  by  contract  with  the  wife  as  well  as  the  husband. 
And  althougb  expressly  released  from  all  liability  to  the 
debts  of  the  husband,  it  by  no  means  follows  that  it  is 
released  from  the  debts  of  the  wife  when  contracted 
jointly  with  her  husband  for  the  purpose  of  improving  her 
separate  estate. 

The  statute  of  this  state  does  not  materially  enlarge  the 
rights  of  married  women  in  equity,  but  it  gives  them  the 
same  powers  and  privileges  at  law  over  her  estate  which 
before  could  only  be  asserted  in  a  court  of  equity.  If, 
then,  this  suit  should  be  regarded  as  a  proceeding  at  law, 
the  principles  of  equity  applicable  to  a  wife's  separate 
property  might  have  a  controlling  influence  in  deciding 
this  case.  But  it  is  something  more  than  a  proceeding 
at  law.  The  very  object,  the  form  and  the  result,  of  the 
action,  show  it  to  be  assimilated  to  chancery  jurisprudence. 
The  act  authorizes  the  filing  of  a  bill  or  petition  as  in 
chancery,  but  to  secure  a  more  speedy  trial,  directs  the 
case  to  be  docketed  on  the  common  law  appearance  docket ; 
and  that  the  same  rules  of  evidence  shall  be  observed  as 
in  suits  at  law.  At  the  same  time  it  requires  the  court 
to  "  give  judgment  according  to  the  justice  and  equity  of 
the  case,"  and  not  according  to  the  strict  rules  of  law. 
The  obvious  intention  of  the  legislature  then  was,  to  give 
an  easy,  cheap  and  sure  remedy  to  that  class  of  commuDity 


438  SUPREME  COURT  CASES, 


Greenough  v.  Wl2;2:ins:ton  and  Wife. 


for  whose  benefit  the  law  was  passed,  by  extending  to 
them  all  the  facilities  of  common  law  evidence  without  the 
delay  and  expense  of  taking  depositions,  and  extends,  at  the 
same  time,  all  the  liberal  and  appropriate  rules  of  equity. 
In  deciding  this  case,  then,  we  are  authorized  to  go  beyond 
the  strict  rules  of  law,  and  appeal  to  chancery  principles 
in  order  to  arrive  at  "  the  justice  and  equity  of  the  case." 
Law  and  equity  act  in  concert  so  far  as  general  personal 
engagements  of  married  women  are  concerned.  Such 
contracts  cannot  affect  their  separate  property.  But  as 
a  necessary  result  of  the  principle  that  a  married  woman 
may  take  and  enjoy  property  to  her  separate  use,  equity 
enables  her  to  deal  with  it  as  Si  feme  sole.  Such  an  interest 
and  power,  whether  recognized  in  a  court  of  chancery  or 
created  by  statute,  produce,  as  an  incident,  the  right  of 
disposition  or  appointment ;  the  power  to  sell,  pledge,  or 
incumber  her  separate  estate.  And  it  is  only  necessary 
to  have  her  intention  to  sell,  pledge  or  incumber  her 
estate  indicated,  in  order  to  give  effect  to  the  transaction. 
A  debt  contracted  by  a  woman  during  coverture,  either 
as  principal  or  as  surety  for  her  husband,  or  jointly  with 
him,  is  generally  held  to  be  prima  facie  evidence  to 
charge  her  separate  estate,  without  proof  of  a  positive 
intention  to  do  so.  2  Story  Eq.  Jur.,  §  1400.  The  equity 
doctrine  seems  to  be  well  established  in  England,  that 
such  engagements  by  married  women  would  bind  their 
se])arate  estate.  Hulme  v.  Tenant,  1  Brown  Ch.  C,  16 ; 
Sillia  V.  Airey,  1  Ves.,  277  ;  Balpin  v.  Clark,  17,  ib.,  277; 
C  Eng.  Ch.  R.,  43;  9  ib.,  1.  And  the  American  cases 
which  we  have  examined  go  to  the  full  extent  of  the  Eng- 
lish decisions.  Jacques  v.  The  M.  E.  Church,  17  John., 
548;  N.  A.  Coal  Co.  \.  Dyett,  7  Paige;  -Gardener  v. 
Gardener,  ih.,  112;   Curtis  v.  Engel,  2  Sand  Ch.  R.,  287. 

Viewing  this  case,  as  we  feel  authorized,  upon  equity 
principles,  there  can  be  no  doubt  that  Mrs  Wiggington's 
separate  propert}'  should  be  held  resi)onsible  for  the  debt, 
contracted  by  lierself  and  husband  for  the  benefit  of  her 
estate.     It  would  be  rank  injustice  to  suffer  fx  feme  covert 


BURLINGTON,  MAY,  1850,  439 

Greenough  v.  Wiggington  and  Wife, 

to  enter  into  such  engagements,  secure  valuable  improve- 
ments upon  her  real  estate,  and  then  exempt  it  from 
liability  for  those  improvements.  No  decision  from  a 
court  of  justice  should  ever  countenance  such  a  system 
of  fraud.  The  averments  iu  the  bill  sufficiently  show 
that  the  work  and  materials  were  obtained  upon  the 
credit  of  her  property,  that  all  inured  to  her  individual 
benefit,  that  her  own  undertaking  in  the  premises  express 
an  intention  to  charge  her  separate  estate,  and  that  it 
was  upon  the  faith  of  such  security  that  the  plaintifl: 
performed  the  work.  Upon  such  a  showing,  we  think 
the  plaintiff's  prayer  for  a  lien  should  have  been  enter- 
tained by  the  court  below,  and  that  the  demurrer  should 
have  been  overruled. 

Judgment  reversed. 

Ginmes  and  Starr  and  M.  D.  BroToning,  for  plaintiff  in 
error. 

D,  RoreTy  for  defendants. 


CASES  m  LAW  AND  EQUITY, 

DBTBBUINEO  IV  THB 

SUPREME  COURT  OF  THE  STATE  OF  IOWA, 

OTTUMWA,  JUNE  TERM,  A.D.  1850, 
In  the  Fourth  Year  of  the  State. 


Hon.  JOSEPH  M^LLIAMS,  Chief  JusttM, 
Hon.  JOHN  F.  KINNEY,    )  j  . 
Hon.  GEO.  GREENE,  \  ''^963. 


HICKS  V.  WALKER. 

Where  the  county  and  state  are  named  in  the  margin  of  a  declaration,  and 

the  county  is  referred  to  in  its  hody  as  "  Monroe  ety,"  held  that  the 

venue  was  sufficiently  stated. 
In  an  action  of  slander,  where  general  damages  only,  such  as  the  law  implies 

from  words  actionable  per  se,  are  claimed,  the  declaration  need  not  specify 

damages.' 

Erroe  to  Monroe  District  Court. 

Opinion  hy  Greene,  J.     An  action  on  the  case,  in  whicb 
the  following  is  the  form  of  the  declaration  • 


OTTUMWA,  JUNE,  1850.  441 


Hicks  V.  Walker. 


"  State  of  Iowa,    )  ^^ 
Monroe  Co.        ( 
William  Hicks   ^ 

vs.  >  Case. 

John  Walker.     J 

"  Jolin  Walker,  tlie  above  named  defendant, 
was  summoned  to  answer  William  Hicks,  the  above  named 
plaintiff,  in  a  plea  of  the  case,  whereupon  the  said  plain- 
tiff by  M.  D.  Ives  his  attorney  complains  ;  for  that  whereas 
the  said  defendant  did,  on  or  about  the  twelfth  day  of 
July,  1849,  at  Pleasant  township,  Monroe  c'ty,  maliciously, 
falsely,  and  openly  utter  and  publish,  in  the  hearing  of 
sundry  persons,  the  following  false  and  scandalous  words 
of  and  concerning  the  plaintiff,  to  wit :  '  William  Hicks 
(meaning  the  plaintiff)  will  steal,  and  did  steal  in  Penn- 
sylvania, and  had  to  leave  that  state  for  stealing,'  which 
is  to  the  damage  of  the  plaintiff  of  the  sum  of  $500,  and 
therefore  he  sues." 

To  this  declaration  the  defendant  demurred,  and  as- 
signed for  special  cause  :  1.  That  there  is  no  sufficient 
venue  ;  2.  It  does  not  allege  in  what  manner  the  plain- 
tiff was  damaged.  The  demurrer  was  sustained,  and  it  is 
now  contended  that  the  court  erroneously  decided  against 
the  sufficiency  of  the  declaration. 

Counsel  m'ge  as  an  objection  to  the  declaration,  that  it 
is  very  unlike  those  which  are  usually  filed  in  such  cases, 
and  that  it  is  defective  in  the  two  particulars  specified  by 
the  special  demurrer.  In  relation  to  the  general  objection, 
it  must  be  admitted  that  the  declaration  is  remarkable 
for  its  brevity,  and  not  in  the  usual  form  suggested  by 
most  of  the  authors  on  pleadings.  But  in  American  courts 
at  least,  prolixity  is  no  longer  regarded  as  an  indispensable 
branch  of  pleading,  nor  is  it  deemed  essential  to  adhere 
with  venerating  tenacity  to  the  verbose  forms  of  ancient 
pleaders.  As  conciseness  promotes  perspicuity,  and  re- 
dundancy leads  to  ambiguity  and  doubt,  there  is  surely  no 
propriety  in  adhering  to  forms  which,  when  divested  of 
their  superfluity  of  words,  become  more  simple  and  in- 
telligible. If  a  declaration  or  plea  contains  all  the  neces- 
VoL.  II.  29 


442  SUPREME  COURT  CASES, 

Hicks  V.  Walker. 

sary  legal  averments,  that  is  sufficient ;  the  more  succinct 
they  are  in  language  the  better,  if  they  only  express  the 
facts  intended. 

It  is  objected  to  the  present  declaration,  that  the  venue 
is  not  sufficiently  stated.  But  we  think  otherwise.  It  is 
not  only  stated  in  the  margin,  but  is  also  referred  to  with 
sufficient  identity  in  the  body  of  the  declaration.  The 
abbreviation  of  "  cty."  admits  of  no  ambiguity.  In  its 
connection  with  other  words,  it  can  only  stand  for  county. 
This,  then,  we  do  not  consider  a  sufficient  ground  of 
demurrer. 

2.  The  other  objection  specified  is,  that  the  declaration 
does  not  state  in  what  manner  the  plaintiff  was  damaged. 
If  the  slanderous  words  charged  in  the  declaration  were 
not  actionable  per  se,  if  they  made  out  a  case  in  which 
special  damages  only  could  be  claimed  for  some  particular 
and  actual  injury  resulting  from  a  slander  not  actionable 
in  itself,  this  objection  might  be  urged  with  much  pro- 
priety. Chitty's  PL,  347.  But  by  the  declaration  in  this 
case,  general  damages  only  are  sought,  which  are  such  as 
the  law  implies  as  resulting  from  words  actionable  in 
themselves ;  and  such  damages  need  not  be  specially 
averred,  because  it  is  a  general  rule  that  presumptions  of 
.  law  are  not  to  be  pleaded.  In  this  advanced  era  in  the 
science  of  pleading,  it  might  very  properly  be  regarded  as 
a  loose  style,  and  as  censurable  surplusage  to  allege  mere 
matter  of  law,  or  any  fact  which  should  be  officially  noticed 
by  the  com*t. 

Chitty  remarks,  that  "though  it  is  usual  in  an  action 
on  the  case  for  calling  the  plaintiff  a  '  thief,'  to  state  that, 
by  reason  of  the  speaking  of  the  words,  the  plaintiff's  char- 
acter was  injured,  yet  that  the  statement  appears  unneces- 
sary, because  it  is  an  intendment  of  law  that  the  plaintiff 
was  injured  by  the  speaking  of  such  words."  Chitty's  PL, 
347.  It  is  true  that,  under  this  declaration,  the  plaintiff 
would  be  limited  to  general  damages,  and  could  not  super- 
add proof  and  recover  for  special  injuries.  But  it  alleges 
all  that  is  necessary  to  support  the  action;  it  states  the  time. 


OTTUMWA,  JUNE,  1850.  443 

Rogers  v.  Alexander, 

the  place  and  the  injury  with  such  certainty  and  precision, 
that  the  defendant  may  know  what  he  is  called  upon  to 
answer,  and  by  an  unequivocal  plea  raise  an  issue  upon 
which  a  complete  verdict  and  a  certain  judgment  may  be 
given.  When  a  declaration  contains  such  requisites,  and 
will  produce  such  results,  it  shows  a  compliance  with  the 
chief  object  of  pleading,  and  should  be  deemed  sufficient. 
Besides,  the  declaration  in  this  case  is  not  altogether 
without  precedent.  It  appears  to  have  been  literally 
copied  from  Swift's  Digest,  423,  a  work  by  no  means 
contemptible,  so  far  as  a  terse  style  and  methodical 
arrangement  of  pleading  are  concerned. 

We  conclude,  therefore,  that  the  court  below  erred  in 
sustaining  the  demurrer  to  the  declaration. 

Judgment  reversed. 

Ives  and  Summers,  for  plaintiff  in  error. 

Allison,  Wright  and  Knapp,  for  defendant. 


>  •  *  ■  <- 


BOGERS  V.  ALEXANDER. 

Where  an  agreement  was  entered  into  "  for  the  purpose  of  trial  before  the 
justice,  and  in  no  other  court,"  such  agreement  should  not  be  used  on  trial 
in  the  district  court,  if  ol)jected  to  by  one  of  the  parties. 

A  party  is  entitled  to  a  jury  trial  upon  an  issue  of  facts,  even  if  those  facts 
had  been  previously  admitted  by  agreement,  or  if  the  party  had  agreed 
to  submit  the  case  to  the  court,  but  had  witlulrawn  that  agreement. 

A  prosecution  for  selling  spirituous  liquor  in  less  quantity  than  one  gallon, 
should  be  conducted  in  the  name  of  "  The  State  of  Iowa." 

Erkor  to  Van  Buren  District  Court. 

Opinion  by  Williams,  C.  J.  This  is  a  proceeding  com- 
menced by  plaintiif  Alexander,  as  treasurer  of  Van  Buren 
county,  against  Rogers,  the  defendant,  on  the  statute  of 
1840,  page  25,  for  selling  spirituous  liquors  in  less  quantity 


444  SUPREME  COURT  CASES, 

Rogers  v.  Alexander. 

than  one  gallon  without  license.  Judgment  was  entered 
by  the  justice  of  the  peace  against  the  defendant  for  the 
sum  of  $30,  and  costs.  He  took  an  appeal  to  the  district 
court.  The  cause  was  tried  on  the  appeal,  and  a  judgment 
entered  for  the  same  amount  against  the  defendant,  with 
costs.  Defendant  took  exceptions  to  the  proceedings  in 
the  district  court.  The  case  was  tried  by  the  judge 
without  the  intervention  of  a  jury.  The  proceedings  of 
the  court  in  this  trial  are  complained  of  as  error.  The 
l)laintiff  in  error  assigns  several  errors  upon  which  a 
reversal  of  the  judgment  of  the  district  court  is  m*ged. 
But  two  of  these  will  be  considered  as  important  here. 
They  are  as  follows,  viz.  :  1.  It  was  error  to  refuse  the 
defendant  the  right  of  trial  by  a  jury ;  2.  It  was  error  to 
assess  a  fine  against  the  defendant,  when  the  prosecution 
was  carried  on  in  the  name  of  an  individual,  and  not  in 
the  name  of  "  The  State  of  Iowa." 

On  the  trial  of  the  cause  before  the  justice,  an  agree- 
ment was  filed  by  the  parties,  with  the  expressed  under- 
standing that  it  was  "  for  the  purpose  of  trial  before  the 
justice,  and  in  no  other  court."  The  agreement  is  in  the 
follo^dng  words :  "  In  this  case,  for  the  purpose  of  trial 
before  the  justice,  and  in  no  other  court,  it  is  agreed  by 
the  parties  that  the  defendant  retailed  spirituous  liquors 
in  Keosauqua,  Van  Buren  county,  Iowa,  subsequent  to 
the  1st  of  January,  1848,  and  before  the  date  of  the  com- 
mencement of  this  suit ;  and  that  the  defendant  applied 
to  the  board  of  county  commissioners  of  said  county  sub- 
sequent to  the  election,  on  the  first  Monday  of  April  1847, 
and  before  the  commencement  of  this  suit,  for  license,  and 
that  the  commissioners  refused  to  grant  such  license.  This 
agreement  was  duly  signed  by  the  attorneys  of  the  parties, 
and  filed  with  the  papers  of  the  case  before  the  justice. 
When  the  cause  was  called  for  trial  on  the  appeal  in  the 
district  court,  the  attorney  for  the  appellant  moved  the 
court  for  leave  to  withdraw  the  agreement  from  the  files, 
on  the  ground  that  by  its  terms  its  operation  was  confined 
to  the  trial  before  the  justice,  and  should  not  be  used  for 


OTTUMWA,  JUNE,  1850.  445 

Raj^ers  v.  Alexander. 

the  purpose  of  trial  in  the  district  court,  without  the  con- 
sent of  the  parties  thereto.  The  leave  to  withdraw  was 
refused  by  the  court.  The  defendant's  attorney  then  de- 
manded a  trial  by  jury.  Upon  this  demand  being  made, 
the  judge  directed  the  clerk  to  j)roceed  and  call  a  jury  for 
the  trial  of  the  cause.  Whereupon  the  attorney  for  the 
plaintiff  suggested  that  he  had  no  witnesses  by  whom  to 
prove  the  facts  relied  on  for  the  conviction  of  the  defend- 
ant. The  court  then  proceeded  without  a  jury,  and  gave 
judgment  against  the  defendant  and  B.  P.  Marlow,  his 
security  on  the  appeal  bond,  for  $30,  and  costs. 

The  judgment  of  the  court  affirms  that  of  the  justice, 
and  is  for  the  penalty  under  the  statute.  In  the  record 
for  the  judgment,  it  is  stated  that  the  case  was  submitted 
to  the  court,  notwithstanding  the  bill  of  exceptions  sets 
forth  the  fact  that  the  defendant's  counsel,  before  the 
entry  of  the  judgment,  insisted  upon  a  trial  by  jury  as  his 
right.  This  being  the  case,  as  presented  by  the  record, 
we  will  proceed  to  consider  it  on  the  two  assignments  of 
error  as  above  stated. 

The  constitution  of  this  state,  Ai't.  2,  bill  of  rights,  pro- 
vides that  "  the  right  of  trial  bj'"  jury  shall  remain  invio- 
late." The  proceeding  is  on  a  penal  statute,  by  which,  on 
conviction,  the  defendant  became  liable  to  the  payment  of 
a  fine.  The  fact  to  be  ascertained  was  the  guilt  or  inno- 
cence of  the  accused.  This  fact  could  be  established  by 
the  defendant  pleading  "  guilty,"  or  by  evidence  submitted 
to  the  jury  of  the  contrary,  upon  the  issue  joined  by  the 
defendant's  plea  of  "  not  guilty."  It  is  true  that,  in  cases 
of  misdemeanour  like  this,  it  has  sometimes  been  practice 
allowable,  where  the  parties  consent  to  waive  a  trial  by 
jury,  for  the  court  to  proceed  to  the  hearing  and  final  judg- 
ment of  the  case  without  the  intervention  of  a  jury.  This, 
however,  can  only  be  done  by  consent  of  the  parties,  and 
is  then  at  the  option  of  the  judge.  But  we  have  not  found 
a  case  heretofore,  in  this  state  at  least,  where  the  com-t 
refused  the  accused,  in  a  criminal  proceeding,  "  the  right 
of  trial  by  jury,"  when  claimed  and  insisted  upon  before 


446  SUPREME  COURT  CASES, 

Rogers  v.  Alexander. 

judgment,  and  when  the  fact  in  issue  was  his  guilt  or 
innocence.  Even  after  the  plea  of  "  guilty  "  in  confession 
of  the  accusation  has  been  pleaded,  it  may  he  withdrawn, 
and  the  accused  permitted  to  enter  the  plea  of  "  not  guilty," 
and  proceed  to  a  trial  by  jury.  In  the  case  at  bar,  the 
court  has  proceeded  to  judgment,  on  the  ground  that  the 
case  had  been  submitted  to  the  judge  by  agreement  of  the 
parties ;  but  the  bill  of  exceptions  allowed  and  certified 
by  the  court,  certainly  shows  that  if  such  a  submission  had 
been  agreed  on,  it  was  withdrawn  by  defendant's  counsel 
in  time  for  the  exercise  of  his  right  to  a  jury  trial.  If  the 
agreement  which  had  been  filed  for  the  purpose  of  trial 
before  the  justice  were  not  properly  before  the  court  as 
evidence,  and  its  withdrawal  would  have  worked  surprise 
on  the  prosecutor,  it  was  in  the  p6wer  of  the  court,  by  the 
exercise  of  a  sound  discretion,  to  give  time  for  the  pro- 
curement of  testimony  on  the  part  of  the  prosecution. 
By  resuming  the  hearing,  after  a  call  of  the  jury  had  been 
directed,  when  informed  that  the  prosecutor  had  no  testi- 
mony to  sustain  the  charge  made  against  the  defendant, 
we  think  the  court  erred.  By  operation  of  the  statute, 
the  case  was  in  the  district  court  for  trial  de  novo.  The 
accused  had  a  constitutional  right  to  a  jury  trial,  unless 
he  had  waived  it  by  plea  or  otherwise. 

The  other  assignment  of  error  which  it  is  proper  to 
notice  here  relates  to  the  parties  to  the  proceeding,  and  is 
founded  on  a  provision  of  the  constitution  of  this  state. 

This  prosecution  is  criminal  in  its  nature.  By  it,  under 
the  statute,  a  misdemeanom-  punishable  by  fine  is  charged 
upon  the  accused.  It  was  commenced  March  21,  1848, 
nearly  two  years  after  the  provisions  of  the  constitution 
were  adopted  and  in  force.  It  could  only  be  proceeded 
in  as  prescribed  by  the  constitution.  Art.  6,  §  6,  is  as 
follows :  "  The  style  of  all  process  shall  be  '  The  State  of 
Iowa,'  and  all  prosecutions  shall  be  conducted  in  the  name 
and  by  the  authority  of  the  same."  This  being  a  prose- 
cution which  was  instituted  after  the  adoption  of  the  con- 
stitution, it  should  have  been  conducted  "in  the  name 


OTTUMWA,  JUNE,  1850.  447 

Davis  V.  Fish. 

and  by  the  authority  of  the  state  of  Iowa,"  and  not  in  tlie 
name  of  the  treasurer  of  the  county,  Gideon  B.  Alexander. 
It  is  true,  the  statute  on  which  this  prosecution  is  founded 
directed  this  form  so  far  as  to  designate  the  treasurer  of 
the  county  to  institute  the  action.  But  the  constitution  is 
the  paramount  law,  and  its  requirements  must  be  observed. 

Judgment  reversed. 

H.  M.  Shelby,  for  plaintiff  in  error, 

Howell  and  Cowles,  for  defendant. 


DAVIS  V.  FISH. 

A  written  a.!?reement  between  D.  and  F.  stipulated  that  D.  should  furnish 
certain  kinds  of  goods  at  25  per  cent,  and  other  kinds  at  10  per  cent, 
advance,  and  concluded  with  the  stipulation  :  "  All  goods  billed  at  25  per 
cent,  payable  in  six  months,  at  10  per  cent,  in  four  months,  by  adding  10 
per  cent,  interest:"  held  that  the  interest  should  be  charged  on  the  goods 
furnished  at  25  per  cent,  as  well  as  on  those  furnished  at  10, 

Error  to  Wapello  District  Court. 

Opinion  bj  Kinney,  J.  Davis  sued  Fish  in  assumpsit, 
and  dechired  uj^on  the  following  contract :  "  This  is  to 
certify  that  I  do  agree  to  furnish  E.  D.  Fish  any  articles 
of  goods  we  may  have  to  dispose  of,  namely,  25  per  cent. 
for  all  kinds  of  goods  except  the  following :— sugar,  coffee, 
iron  casting,  nails,  salt,  molasses,  at  10  per  cent,  by 
adding  transportation.  Flour,  corn-meal,  whisky,  bacon, 
&c.,  to  be  consigned  at  the  lowest  cash  price,  by  the  quan- 
tity, and  accounted  for  when  sold.  The  above  articles  to 
be  furnished  as  the  said  Fish  order  on  memorandum ; 
goods  to  be  delivered  at  40  cts  per  hundred  to  Eddy- 
ville,  Iowa.  All  goods  billed  at  25  per  cent,  payable  in 
six  months,  at  10  per  cent,  in  four  months,  by  adding  10 
per  cent,  interest." 


448  SUPREME  COURT  CASES, 

Davis  V.  Fish. 

The  only  question  arising  in  this  case  is  one  growing 
out  of  a  construction  of  this  hist  clause  of  the  agreement. 

The  court  instructed  the  jury  "  that  the  contract  to  pay 
interest  was  confined  to  the  goods  billed  at  10  per  cent, 
advance,  and  that  those  which  were  billed  at  25  per  cent, 
advance  would  draw  interest  by  the  statute  at  6  per  cent, 
after  due."  Although  the  concluding  part  of  the  contract 
is  somewhat  ambiguous,  and  evidently  written  in  that 
laconic  style  which  is  somewhat  peculiar  to  commercial 
men,  still  we  think  the  construction  given  it  by  the  court 
is  different  from  what  the  parties  intended  at  the  time. 
In  the  construction  of  all  contracts,  the  great  object  of 
the  com-ts  should  be  to  reach  the  intention  of  the  parties. 
This  can  sometimes  be  ascertained  from  the  express  lan- 
guage used  in  the  contract,  but  at  other  times,  words 
which  evidently  contradict  the  general  spirit  of  the  agree- 
ment must  be  disregarded,  and  the  meaning  of  the 
parties  declared  without  reference  to  the  language  used, 
except  as  far  as  it  expresses  the  intention  of  parties.  In 
the  construction  of  this  contract,  much  is  left  to  inference. 
All  goods  billed  at  25  per  cent.,  payable  in  six  months  at 
10  per  cent. ;  that  is,  all  goods  billed  at  10  per  cent,  pay- 
able in  four  months. 

The  adding  of  the  10  per  cent,  interest,  we  think,  refers 
to  the  entire  amount  of  goods  thus  billed.  The  matter 
would  have  been  placed  beyond  all  doubt,  if  the  words 
"upon  the  whole  amount"  had  been  inserted  after  the 
word  '■'■  interest ;  "  but  the  omission  is  characteristic  of  the 
entire  contract.  "  The  fewest  words  possible  are  used  by 
the  parties  to  express  their  liability.  The  statute  autho- 
rizes parties  to  contract  in  writing  for  10  per  cent,  in- 
terest. It  is  reasonable  to  presume  that  this  contract  was 
made  with  reference  to  this  statute,  and  that  as  time  was 
given,  it  was  the  intention  of  the  parties  to  stipulate  for  that 
amount,  particularly  as  the  contract  bears  this  construc- 
tion. Davis  agrees  to  furnish  Fish  with  goods.  They  are 
to  be  billed  at  a  certain  per  cent,  above  costs,  and  time  is 
to  be  given  for  payment,  four  months  upon  one  bill,  and 


OTTUMWA,  JUNE,  1850.  449 

Parris  v.  The  State. 

six  upon  the  other.  Ten  per  cent,  interest  is  stipulated, 
which,  we  think,  taken  in  connection  with  the  character 
of  the  contract,  was  intended  by  the  parties  to  apply  to 
the  whole  amount  of  goods  billed. 

Judgment  reversed. 

Wright  and  Knapp,  for  plaintiff  in  error. 

aS.  W.  Summers  and  H.  D.  Ives,  for  defendant. 


PARRIS  V.  THE  STATE. 

Under  the  statute  of  1849  it  is  erroneous  for  a  district  judge  to  charge  a 

jury,  or  to  modifj'  instructions  orally. 
Legal  instructions  may  be  refused  and  given  in  a  modified  form  in  writing, 

as  the  circumstances  and  evidence  of  the  case  may  require. 

Error  to  Davis  District  Court. 

Ojnnion  hy  Greene,  J.  Indictment  for  suffering  gaming. 
Trial  before  a  jury,  a  verdict  of  guilty,  and  a  fine  assessed 
of  $50.  The  indictment  was  found  under  the  eighth 
section  of  an  act  to  prevent  and  punish  gaming.  Rev. 
Stat. ,  275.  This  section  provides  that  if  any  keeper  of  a 
tavern,  grocery  or  other  house  of  public  resort,  sliall  suffer 
any  game  prohibited  by  the  act  to  be  played  at  or  within 
such  tavern,  grocery,  &c.,  or  in  any  outhouse  appendant 
thereto,  such  keeper  shall,  on  conviction,  forfeit  and  pay 
a  sum  not  less  than  $50,  nor  more  than  $200,  &c.  The 
act  prohibits  all  games  whatsoever,  except  games  of  athletic 
exercise. 

Upon  the  trial,  defenaant's  counsel  asked  the  court  to 
give  certain  instructions.  Among  the  instructions  the 
following  were  asked  and  refused:  I.  The  state  must 
prove  the  game  played  to  be  the  game  charged  in  the 
indictment ;  2.  That  the  state  must  prove,  to  the  satisfac- 


450  SUPREME  COURT  CASES, 

Parris  v.  The  State. 

tion  of  the  jury,  that  some  game  was  played  by  the  per- 
sons mentioned  in  the  indictment ;  3.  That  in  order  to 
convict,  they  must  be  satisfied  that  the  game  played  was 
not  a  game  of  athletic  exercise,  and  upon  this  they  must 
be  satisfied  from  the  testimony  of  witnesses,  and  not  from 
anything  they  may  know  of  themselves.  At  the  conchi- 
sion  of  these  and  five  other  instructions  asked  b}^  defend- 
ant, the  following  note  appears  over  the  signature  of  the 
judge  :  "  Refused,  and  others  given  instead." 

But  the  substituted  instructions  are  not  made  a  part  of 
the  record,  nor  are  we  informed,  except  by  an  unauthor- 
ized remark  of  the  clerk,  whether  they  were  given  orally 
or  in  writing.  If  in  writing,  they  should  have  been  con- 
nected with  the  instructions  asked,  and  made  a  part  of  the 
record  under  the  signature  of  the  court.  If  orally  given, 
it  was  in  du-ect  conflict  with  the  laws  of  1839,  p.  135, 
§  2,  which  provides,  that  when  instructions  are  asked  by 
either  party,  the  court  shall  in  no  case  "  orally  qualify, 
modify,  or  in  any  manner  explain  the  same  to  the  jury." 
Under  this  section  instructions  asked  cannot  be  orally 
modified  or  explained,  but  they  may,  no  doubt,  be  ex- 
plained in  writing  by  connecting  such  written  explana- 
tions with  the  instructions  asked,  and  making  all  a  part  of 
the  record.  This  is  wholly  neglected  in  the  present  case, 
and  we  are  only  informed  by  the  judge  that  other  instruc- 
tions were  given,  without  any  intimation  of  their  character. 

It  was  erroneous  to  refuse  uucjualifiedly  the  three  in- 
structions above  quoted,  still  they  might  with  propriety 
have  been  refused  and  given  in  a  modified  form  in  writing, 
as  the  peculiar  circumstances  and  evidence  of  the  case 
might  require ;  but  as  the  record  shows  an  absolute  re- 
fusal, and  no  written  explanation,  the  judgment  must  be 
reversed,  and  a  trial  de  novo  awarded. 

Judgment  reversed. 

Wright  and  Knapp^  H.  D,  F aimer  and  A.  Ilall^  for 
plaintiff  in  error. 

S.  S.  Carpenter,  for  the  state. 


OTTUMWA,  JUNE,  1850.  451 

Reeves  v.  Royal. 


REEVES  V.  ROYAL  et  al 

Wliere  a  new  trial  is  sought  on  the  ground  of  newly  discovered  evidence, 
the  best  proof  should  be  adduced  to  show  that  such  evidence  has  been 
disL'Overed,  where  it  is,  that  it  can  be  had  at  the  proper  time,  that  it  is 
material,  and  not  merely  cumulative,  and  that  a  failure  to  procure  it  on 
the  trial  was  not  occasioned  by  negligence. 

Where  the  record  shows  that  the  district  court  granted  a  new  trial  on  the 
ground  that  the  instructions  were  confused  and  defective,  this  court  will 
not  disturb  the  order. 

Error  to  Davis  District  Court. 

Opinion  by  Williams,  C.  J.  Reuben  R.  Reeves,  as 
adTiiinistrator  of  the  estate  of  Levi  Reeves,  deceased, 
broug-lit  his  action  of  assumpsit  against  the  defendants, 
Ro}ul  and  Jackson,  in  the  district  court  of  Davis  county, 
to  the  April  term,  1848.  The  plaintiff  declared  upon  a 
joint  and  several  note,  payable  six  months  after  date, 
calling  for  $110.70.  The  note  bears  date  the  22d  day  of 
August,  A.D.  1846.  The  defendants  set  up  fraud  and  cir- 
cumvention on  the  part  of  plaintiff  in  obtaining  the  note. 
The  cause  was  tried  at  April  term,  1848,  and  a  verdict 
rendered  for  the  plaintiff  for  |1 18.02.  Upon  the  recovery 
of  the  verdict,  the  defendants  moved  the  court  to  grant  a 
new  trial.  On  hearing,  the  verdict  was  set  aside  and 
a  new  trial  granted.  This  action  of  the  com't  is  here 
assigned  as  error. 

The  record  shows  that  the  motion  for  a  new  trial  was 
urged  on  two  grounds,  to  wit :  newly  discovered  evidence, 
and  error  in  the  instructions  of  the  court,  so  as  to  mislead 
the  jury  in  making  up  their  verdict. 

The  affidavit  of  Royal,  one  of  the  defendants,  was  filed, 
on  which  he  stated  that  since  the  trial  he  was  informed 
one  Denison,  who  was  then  absent,  would  testify  that  said 
plaintiff,  Reuben  R.  Reeves,  stated  to  witness,  "  that 
they  (meaning  plaintiff  and  Green  Reeves)  had  a  hard 
time  to  get  old  Royal  into  it,"  (meaning  the  note  sued.) 


452  SUPREME  COURT  CASES, 

Reeves  v.  Royal.  ♦ 

The  affiant  does  not  pretend  in  the  affidavit  to  disclose 
the  name  of  the  person  who  informed  him  of  what  Deni- 
son  would  swear,  nor  does  he  aver  his  belief  in  the  state- 
ment made.  The  affidavit  does  not  show  that,  in  the  use 
of  proper  diligence,  the  testimony  of  Denison  could  not 
have  been  procured  on  the  trial. 

So  vague  and  indefinite  are  the  allegations  of  fact  con- 
tained in  the  affidavit,  that  of  itself  it  does  not  present 
sufficient  ground  for  granting  a  new  trial.  Indeed,  it 
does  not  appear  to  have  been  considered  by  the  judge  who 
tried  the  cause  as  furnishing  the  reason  upon  which  he 
acted  in  granting  the  motion. 

Where  a  party  seeks  to  procure  a  new  trial  on  the 
ground  of  newly  discovered  evidence,  he  should  give  the 
court  the  best  evidence  possible  of  the  truth  of  the  allega- 
tions that  such  evidence  has  been  discovered,  where  it 
is,  and  that  it  can  be  had  at  the  proper  time.  It  is  also 
necessary  to  show  that  the  evidence  is  material  to  the 
issue  between  the  parties,  and  is  not  cumulative  merely ; 
and  further,  that  the  failure  to  produce  it  on  the  trial  was 
not  chargeable  to  his  own  negligence.  Shlenker  v.  Risley^ 
3  Scam.,  486.  In  this  case  we  think  the  doctrine  is  truly 
set  forth.  But  enough  has  been  said  upon  this  point, 
as  the  action  of  the  district  court  in  granting  the  new 
trial  appears  by  the  bill  of  exceptions  to  have  been  predi- 
cated upon  the  misdirection  of  the  judge  in  charging  the 
jury. 

It  appears  by  the  bill  of  exceptions  that  the  judge 
charged  the  jury  on  the  question  of  fraud  in  the  procure- 
ment of  the  note  upon  which  the  suit  was  instituted.  In 
his  charge,  as  at  fii'st  given,  there  is  manifest  error.  After 
having  charged  fully  upon  the  question  as  raised  by  the 
pleading,  and  the  facts  adduced  in  evidence,  upon  being 
requested  by  the  defendant's  counsel  to  give  a  different 
instruction  as  to  the  law,  he  expressed  himself  as  dissatis- 
fied with  what  had  been  given,  and  proceeded  to  give 
those  asked.     The  instruction  last  given  is  correct. 

The  defendant's  counsel  urged  as  a  reason  for  granting 


OTTUMWA,  JUNE,  1850.  453 


Eeeves  v.  Koyal. 


a  new  trial,  that  the  jury  was  confused  and  misled  as 
to  the  law  by  the  charge  of  the  court  as  given ;  that  the 
instructions  were  erroneous,  contradictory,  and  calculated 
to  perplex  the  jury. 

The  bill  of  exceptions  then,  in  the  language  of  the  court, 
proceeds  in  setting  forth,  that  "  the  court  being  of  this 
opinion,  and  thinking  that  the  suing  on  the  note  was  a 
ratification  in  law  (of  the  agent's  acts),  and  that  the  jury 
ought  to  have  been  so  expressly  and  clearly  charged,  and 
thinking  that  the  case  went  to  them  under  such  confused 
instructions  that  they  might  be  misled,  &c.,  granted  the 
new  trial." 

This  record  exhibits  to  us  nothing  that  calls  for  this 
court  to  interfere  with  the  ruling  of  the  district  court.  It 
is  true  that  the  bill  of  exceptions  shows  that,  after  much 
discussion  of  the  questions  involved  in  the  trial,  the  com't 
admitted  its  own  error  and  corrected  itself.  But  it  also 
shows  that  the  court,  in  the  exercise  of  a  sound  discretion, 
with  a  full  knowledge  of  all  the  circumstances,  was  of  the 
opinion  that  the  jury  were  confused  and  misled  by  the 
charge.  This  is  not  a  case  in  which,  as  good  reason  for  a 
new  trial,  it  is  alleged  on  behalf  of  a  losing  party,  that 
the  jury  were  misled  or  confused  by  the  instructions  of 
the  court,  and  the  motion  overruled.  But  where  the 
court,  in  express  terms,  admits  the  truth  of  the  allegations 
made  as  the  ground  of  the  motion,  and  granted  a  new 
trial,  we  cannot  interfere. 

The  court  must  be  presumed  to  have  been  fully  pos- 
sessed of  the  circumstances  of  the  case,  and  to  have  acted 
with  a  sound  discretion  in  correcting,  in  a  speedy  and 
proper  manner,  its  own  erroneous  procedure. 

The  order  of  the  district  court  granting  a  new  trial  is 
affirmed. 

Judgment  affirmed. 

Wright  and  Knapp,  for  plaintiff  in  error. 

A.  Hall,  for  defendant. 


454  SUPREME  COURT  CASES, 


Brown  v.  Scott. 


BEOWi^  V.  SCOTT. 

An  appeal  is  authorized  from  the  judgment  of  a  justice,  and  not  from  the 

verdict  of  a  jury. 
The  intention  of  a  justice  to  render  a  judgment  without  doing  so,  is  not  a 

judgment. 
The  certificate  of  an  ex-justice  of  the  peace,  iu  relation  to  his  proceedings 

while  in  office,  is  not  entitled  to  legal  consideration. 

Error  to  Van  Buren  Disthict  Court. 

Opinion  by  Kixney,  J.  Browu  sued  Scott  in  an  action 
of  replevin,  -which  on  change  of  venue  was  tried  before 
Joseph  A.  Kean,  Esq.  The  cause  was  tried  by  a  jury, 
Avho  found  a  verdict  for  the  plaintiff.  Scott  appealed. 
Brown  moved  to  dismiss  the  appeal,  because  there  was  no 
judgment  of  the  justice  of  the  peace  before  whom  the  cause 
was  tried,  from  which  the  defendant  could  appeal. 

The  defendant  therefore  suggested  a  diminution  of  the 
record  in  this,  that  the  transcript  of  the  justice  did  not 
show  a  judgment  upon  the  verdict.  A  rule  was  obtained 
upon  the  justice  and  his  successor  in  office,  commanding 
them  to  send  up  to  the  district  court  their  joint  and  several 
certificates,  setting  forth  distinctly  the  judgment  in  the 
case.  In  pursuance  of  this  rule,  John  McCansland,  Esq., 
the  successor  of  said  Kean,  filed,  a  transcript  from  the 
docket  of  said  Kean,  in  which  it  appears  that  there  was 
not  any  judgment  entered  up  by  his  predecessor  in  office 
a2:ainst  the  defendant  Scott.  Kean,  in  obedience  to  said 
rule,  returns  as  follows  :  "  In  the  above  case,  I,  Joseph  A. 
Kean,  the  justice  before  whom  the  same  was  tried,  do  here- 
by certify,  that  I  rendered  judgment  therein  in  accordanre 
with  the  verdict  of  the  jury ;  and  that  it  does  not  appear  on 
my  docket  and  the  transcript  sent  to  the  district  court, 
arises  from  the  fact,  that  it  was  a  clerical  omission  of  mine." 

The  motion  to  dismiss  was  then  heard  and  overruled  by 
the  court,  and  the  cause  retained  for  trial,  to  which  ruling 
Brown  excepted,  and  assigns  the  same  for  error. 


OTTUMWA,  JUNE,  1850.  455 

Brown  v.  Scott. 

This  ruling  of  tlie  court  was  erroneous.  The  statute  in 
relation  to  jury  trials  before  justices  of  the  peace  provides, 
that  when  the  jurors  have  agreed  on  the  verdict,  they  shall 
deliver  the  same  to  the  justice  publicly,  who  shall  enter  it 
on  his  docket.  Rev.  Stat.,  325,  §  15.  It  is  then  the  duty 
of  the  justice  of  the  peace  to  enter  up  judgment  upon  the 
verdict  against  the  unsuccessful  party. 

The  statute  also  provides,  that  any  person  aggrieved  by 
any  judgment  or  decision  of  a  justice  of  the  peace,  may 
make  his  appeal  therefrom  to  the  district  court,  &c. 

A  person  cannot  appeal  from  the  verdict  of  a  jury.  In 
cases  of  jury  trial  where  the  verdict  is  really  the  cause  of 
complaint,  it  is  still  the  judgment  of  the  justice  upon  the 
verdict,  which  alone  under  the  statute  gives  the  party  the 
right  to  appeal.  If  there  is  not  any  judgment,  there  is 
nothing  to  appeal  from,  nothing  for  the  district  court  to 
try,  no  cause  in  court  which  entitles  the  appellant  to  a 
trial ;  and,  therefore,  in  such  a  case,  unless  an  amended 
transcript  supplies  this  fatal  defect,  the  appeal  on  motion 
should  be  dismissed. 

But  the  court,  in  the  case  before  us,  appears  to  have 
adopted  the  certificate  of  Kean,  the  justice,  before  whom 
the  cause  was  tried,  but  who  was  not  in  office  at  the  time 
of  certifying,  and  by  virtue  of  this  certificate  retained  the 
apj^eal  for  trial. 

From  it,  it  would  seem  that  the  justice  rendered  judg- 
ment, but  failed  to  enter  it  in  writing.  We  are  at  a  loss 
to  know  how  the  justice  could  have  rendered  a  judgment 
that  would  liave  any  force  or  virtue,  without  rendering 
that  judgment  into  proper  form  in  the  docket,  which  he  is 
required  by  law  to  keep  for  that  purpose.  It  is  true,  he 
might  in  his  mind  resolve  upon  entering  the  judgment, 
but  unless  put  into  shape  and  form,  it  would  be  as  though 
no  judgment  at  all  had  existed  in  the  mind. 

This  certificate,  even  if  Kean  had  remained  in  office, 
should  not  have  been  received  by  the  court.  The  act  of 
the  officer  and  not  the  intention,  is  what  gives  force  and 
authority  to  judicial  proceedings. 


456  SUPREME  COURT  CASES, 

rhillips  V.  Cooley. 

However  mucli  Kean  may  have  intended  to  enter  the 
judgment,  if  he  did.  not  do  it,  for  the  purposes  of  appeal 
it  is  the  same  as  though  no  trial  had  taken  place.  Officers 
cannot  supply  acts  by  will,  nor  give  vitality  to  judgments 
which  only  existed  in  the  mind. 

But  when  Kean  retired  from  office,  his  certificate  in 
relation  to  former  official  proceedings  was  not  entitled  to 
any  more  legal  consideration  or  respect  than  if  he  had 
never  been  a  justice  of  the  peace,  or  than  that  of  a  mere 
stranger.  His  docket  by  the  statute  jDassed  into  the 
possession  of  his  successor,  and  transcripts  from  it  could 
not  be  explained,  changed  or  in  any  way  altered  by  the 
certificates  of  the  justice  who  once  entered  them. 

Judgment  in  the  district  court  upon  the  trial  of  this 
case  reversed,  and  the  appeal  dismissed. 

Judgment  reversed. 

A,  Hall,  for  plaintiff  in  error. 

Wright  and  Knapp,  for  defendant. 


I 


->•»«•< 


PHILLIPS  V.  COOLEY. 

Where  a  note  is  made  payable  in  corn  on  or  before  a  given  day,  a  demand  if 

not  necessary. 
Wliere  no  place  is  appointed  for  the  delivery  of  specific  articles,  the  debtor 
must,  before  the  day  of  payment,  ascertain  from  the  creditor,  if  practicable, 
where  he  will  receive  the  goods. 

Error  to  Marion  District  Court. 

Opinion  by  Greene,  J.  An  action  of  assumpsit  on 
a  note,  by  which  Samuel  M.  Cooley  promised  to  pay 
Jacob  Phillips  200  bushels  of  good  corn,  on  or  before 
the  1st  day  of  December,  1848.  Suit  commenced  before 
a  justice  of  the  peace,  where  the  defendant  recovered  a 


OTTUMWA,  JUNE,  1850.  457 


Phillips  V.  Cooley. 


judgment.  The  plaintiff  took  an  appeal  to  the  district 
court,  and  there,  on  the  trial,  offered  the  note  in  evidence 
to  the  jury,  but  the  defendant  objected  to  the  introduction 
of  the  note,  on  the  ground  that  the  plaintiff  had  not  proved 
a  demand  of  the  corn  previous  to  the'  commencement  of 
the  suit.  This  objection  was  sustained,  and  the  plaintiff, 
neglecting  to  prove  a  demand,  was  nonsuited,  and  now 
urges  this  ruling  of  the  court  as  error.  The  only  question 
involved  in  this  case  has  already  been  decided  by  this 
court  in  the  case  of  Games  v.  Manning  *  lu  that  case, 
the  note  was  payable  in  leather  at  a  time  and  place  speci- 
fied; and  it  was  held  that  the  plaintiff  was  entitled  to 
his  action  without  proving  that  he  had  demanded  tlie 
property.  The  fact  that  no  place  was  designated  in  this 
case  for  the  payment  of  the  corn,  cannot  change  the  rule 
in  relation  to  a  demand.  Independent  of  the  statute,  it 
is  a  well  settled  rule,  that  where  no  place  is  appointed  for 
the  delivery  of  specific  articles,  the  debtor  must,  before  the 
day  of  payment,  ascertain  from  the  creditor,  if  practicable, 
where  he  will  receive  the  goods.  Burr  v.  Myers,  3  Watts 
&  S.,  295;  Bixhy  v.  Whitney,  5  Greenl.,  192;  Currier  v. 
Currier,  2  N.  H.,  95;  Howards.  Miner,  20  Maine,  325. 
According  to  this  doctrine,  the  first  act  is  to  be  done  by 
the  debtor,  if  he  wishes  to  avail  himself  of  the  privilege 
to  pay  his  liability  in  property,  and  this  can  hardly  be 
reconciled  with  the  position  that  the  creditor  must  first 
demand  the  specific  articles  before  seeking  to  recover  his 
demand. 

Besides,  the  course  to  be  pursued  by  the  maker  of  any 
instrument  of  writing  is  defined  by  statute  in  all  cases 
where  such  instrument  does  not  specify  any  particular 
place  for  the  payment  or  delivery  of  the  property.  It  pro- 
vides that  it  shall  be  lawful  for  the  maker  of  any  such 
instrument  to  tender,  on  the  day  of  payment,  the  specific 
articles  at  the  place  where  the  obligee  or  payee  of  any  such 
instrument  resided  at  the  time  of  the  execution  thereof. 
Rev.  Stat.,  453,  §  7.     This  certainly  contemplates  no  pre- 

♦  Ante,  251. 

Vol.  II.  30 


458  SUPREME  COURT  CASES, 

Wright  V.  Boon. 

vious  demand  on  the  j)art  of  the  payee  or  obligee.  If 
required,  that  regulation  of  the  statute  would  prove  utterly 
fallacious.  A  demand  necessarily  implies  the  power  to 
deliver  the  article  specified  at  the  time  and  place  of  the 
demand,  and  this  would  enable  the  maker  of  such  an  in- 
strument to  deliver  the  property  at  such  place  as  might 
be  most  convenient  to  him,  without  reference  to  the  rights 
and  convenience  of  the  payee.  But  it  is  useless  to  enlarge 
upon  this  subject,  as  we  adhere  with  confidence  to  the  de- 
cision and  views  expressed  in  Games  v.  Majining. 

Judgment  reversed. 
W.  H.  Seevers  and  L.  W.  Babbitt ,  for  plaintiff  in  error. 
S,  PF".  Summers^  for  defendant. 


. '^M 


WRIGHT  V.  BOON". 

A  judge  cannot  act  as  attorney  in  a  case  pending  before  him. 

When  a  case  comes  before  a  judge,  in  which  he  has  been  engaged  as  attorney, 

he  should  order  a  change  of  venue. 
A  judge  cannot  delegate  his  power  to  another,  nor  can  a  person  be  authorized 

to  act  as  judge  by  agreement  of  the  parties  to  a  suit. 

Ereor  to  Polk  District  Court. 

Opinion  by  Kinney,  J.  Boon  sued  Wright  before  a 
justice  of  the  peace  upon  two  promissory  notes,  one  for 
$53.33,  the  other  for  $34.87. 

The  case  was  tried  by  a  jury,  and  a  verdict  returned  in 
favor  of  the  defendant  for  $83.22.  The  plaintiff  appealed 
to  the  district  court  of  Dallas  county,  and  by  change  of 
venue,  the  cause  was  removed  to  the  district  court  of 
Polk,  where  it  was  tried,  and  a  verdict  of  $57.50  found 
for  Boon.  Wright  then  filed  his  motion  to  set  aside 
the  verdict,  lor  the  following  reasons :  Because  William 


OTTUMWA,  JUNE,  1850.  459 

Wright  V.  Boon. 

McKay,  judge  of  tlie  fifth  judicial  district  of  the  state  of 
Iowa,  appeared  as  counsel  for  William  D.  Boon ;  and  also 
the  said  judge  signed  the  instructions  written  and  given 
by  W.  W.  Williamson,  who  presided  as  judge  in  the 
cause.  This  motion  was  overruled,  and  judgment  entered 
upon  the  verdict.  Whereupon  Wright  sued  out  a  writ  of 
error,  and  assigns  as  error  : 

1st,  The  court  erred  in  acting  as  counsel  and  judge  in 
the  same  case. 

2d,  The  court  erred  in  overruling  the  motion  to  set 
aside  the  verdict  and  grant  a  new  trial. 

The  following  agreement  appears  of  record :  "  Now  come 
McKay  and  Jewett,  attorneys  for  plaintiff,  and  Cassady 
and  Perry,  attorneys  for  the  defendant,  and  by  agreement 
of  parties  heretofore  made,  W.  W.  Williamson,  Esq.,  pre- 
sided in  the  case  instead  of  the  Hon.  William  McKay, 
who  was  one  of  the  counsel  before  he  was  elected  judge." 
The  record,  we  think,  sufficiently  discloses  the  fact  that 
his  honor  Judge  McKay  acted  as  counsel  in  the  court  of 
which  he  was  presiding  and  sole  judge. 

He,  as  counsel,  is  party  to  the  agreement  by  which  a 
member  of  the  bar  is  substituted  as  judge.  A  motion  is 
made  to  set  aside  the  verdict,  in  which  it  is  stated,  that  the 
judge  acted  as  counsel,  and  nothing  is  shown  to  rebut  this 
charge.  The  question  raised  by  the  assignment  of  errors 
is,  Can  parties  substitute  a  person  to  act  as  judge  in  the 
place  of  the  judge,  and  can  the  judge  act  as  counsel  in  a 
cause  in  his  own  coiu-t  ?  By  the  statute,  it  is  provided 
that  in  all  cases  where  the  judge  is  interested  or  preju- 
diced, or  is  related  to,  or  shall  have  been  counsel  for  either 
party,  the  court  shall,  in  term  time,  without  application 
from  either  party,  award  a  change  of  venue,  llev.  Stat., 
p.  639,  §  5.  Judge  McKay  having  been  counsel  in  the 
case  before  his  election  as  judge,  he  should  have  ordered 
a  change  of  venue  as  required  by  this  statute.  Parties 
cannot  agree,  even  with  the  consent  of  the  judge,  to  diijwse 
the  court  and  substitute  another  to  act  as  judge  in  the 
trial  of  causes.     The  bench  cannot  in  this  way  be  vacf>ied, 


460  SUPREME  COURT  CASES 


Dickerson  v.  Shelby. 


nor  fhe  powers  of  the  court  tliiis  delegated  to  another. 
Williamson  possessed  no  more  authority  upon  the  bench 
than  before  he  occupied  the  seat.  ISTor  was  it  within  the 
power  of  the  court  to  confer  upon  him  the  stipulated  judi- 
cial authority.  The  judge  alone  was  endowed  by  law  with 
the  duties  and  responsibilities  which  pertain  and  belong 
to  the  court;  and  if  these  are  assumed  by  another,  or 
attempted  to  be  conferred  by  the  court  or  parties,  all 
proceedings  emanating  from  such  assumed  or  enforced 
authority  will  be  absolute  nullities,  and  should  be  declared 
void  whenever  attempted  to  be  enforced.  This  being  the 
case,  the  impropriety  of  the  judge  leaving  the  bench,  and 
ap]3earing  as  counsel  in  a  cause  on  trial  in  his  own  court, 
is  perfectly  apparent — a  judicial  indiscretion  which  inex- 
perience may  palliate,  but  an  error  sufficient  to  reverse 
any  judgment  thus  obtained. 

The  court  therefore  erred  in  refusing  to  set  aside  the 
verdict.  The  judgment  of  the  court  below  is  reversed, 
and  a  trial  de  novo  awarded. 

Judgment  reversed. 

J.  M.  Perry,  for  plaintiff  in  error. 

Jewett,  Wright  and  Knapp,  for  defendant. 


DICKERSON"  V.  SHELBY. 

Clerks  of  the  district  court  are  entitled  to  fees  before  losing  control  of  their 

service. 
Fees  for  making  out  a  transcript  may  be  required  before  the  case  is  docketed 

in  the  supreme  court. 

Eerok  to  Van  Buren  District  Court. 

Opinion  bj/  G-reene,  J.  A  motion  is  made  in  this  case 
for  a  rule  upon  the  clerk  of  the  Van  Buren  district  court 
to  send  up  the  record  in  obedience  to  the  writ  of  error. 


OTTUMWA,  JUNE,  1850.  461 

Dickerson  v.  Shelby. 

But  it  is  contended  that  the  motion  should  not  be  granted 
because  the  plaintiff  in  error  has  not  paid  the  clerk's  fees 
for  making  the  transcript  of  the  record.  The  question 
arises,  Was  the  clerk  entitled  to  those  fees  before  losing 
control  over  the  transcript?  We  think  this  case  forms  no 
exception  to  the  general  rule  in  relation  to  fees.  Inde- 
pendent of  the  prevailing  practice  which  secures  compen- 
sation to  officers  of  courts  whenever  they  are  rendered,  we 
have  a  statute  which  provides  that  all  fees  shall  be  paid 
by  the  party  requiring  the  services,  on  the  same  being 
rendered.  Rev.  Stat.,  222,  §  4.  If,  then,  a  clerk  of  court 
requires  his  fees  upon  rendering  any  service  for  a  party, 
he  cannot  be  required  to  place  those  services  »in  the  pos- 
session of  such  party  until  he  receives  payment  for  them. 
It  is  true,  a  writ  of  error  is  a  writ  of  right;  it  is  a  man- 
date which  should  be  promptly  obeyed  in  behalf  of  the 
party  for  whose  benefit  it  issued ;  but  still  it  is  not  a  writ 
requiring  gratuitous  service.  Although  it  will  issue  ''  as 
of  course  "  upon  any  order  or  judgment  of  a  district  court, 
still  the  clerk  who  issues  it  is  entitled  to  his  fees  for  it 
before  he  can  be  required  to  let  it  pass  from  his  hands, 
and  upon  the  same  principle  the  clerk  below,  to  whom  the 
writ  is  directed,  is  entitled  to  his  legal  fees  for  preparing 
the  returns  thereto ;  and  if  payment  is  required,  it  should 
be  made  by  the  plaintiff  in  error  before  the  papers  are  filed 
and  docketed  in  this  court.  Where  such  preliminary  pay- 
ment is  demanded  by  the  clerk  below,  he  should  give 
notice  thereof  to  the  plaintiff  or  his  attorney,  and  send  his 
bill  of  particulars  and  demand  of  payment  with  his  re- 
turns in  the  case,  to  the  clerk  of  this  court,  and  authorize 
him  to  receive  the  fees  for  him ;  and  when  such  bill  and 
declaration  accompany  the  papers,  the  clerk  of  the  supreme 
court  will  not  file  the  papers  or  docket  the  case  until 
payment  is  made.  This  rule,  we  think,  is  conformable  to 
the  spirit  of  the  statute,  will  insure  imperative  obedi- 
e.oe  to  writs  of  error,  and  secure  the  clerks  below  in  the 
collection  of  fees  which  might  otherwise  be  lost.  It  will 
be  seen  that  the  clerks  of  the  district  courts,  under  this 


462  SUPREME  COURT  CASES, 

De  France  v.  Spencer, 

arrangement,  are  required  to  obey  tlie  writ  of  error,  and 
make  returns  as  provided  by  statute,  whether  his  fees  are 
previously  paid  or  not. 

The  motion  is  granted  conformable  to  this  opinion. 

J.  H.  Cowles,  for  plaintiff  in  error. 

H,  M.  Shelby,  for  defendant. 


DE  FRANCE  v.  SPEN-CER. 

Ordinary  caution  and  honest  motives  in  setting  fire  to  a  prairie,  and  due 
diligence  in  preventing  it  from  spreading,  is  a  good  defence  to  an  action 
for  damages. 

Error  to  Jefferson  District  Court. 

Opinion  by  Kinney,  J.  Spencer  sued  De  France  and 
Karns  before  a  justice  of  the  peace  for  damages  sustained 
bj'  reason  of  a  fire  which  he  alleged  was  set  out  by  the 
defendants,  and  by  them  permitted  to  communicate  with 
his  premises.  Before  the  justice  the  defendant  in  error 
obtained  a  judgment  from  which  the  defendants  below 
appealed.  In  the  district  court  a  verdict  was  returned  by 
the  jury  against  De  France  for  $20.  To  reverse  the  judg- 
ment upon  this  verdict  he  has  sued  out  a  writ  of  error, 
and  assigns  for  error  the  following  instruction  of  the 
court :  "  He  who  voluntarily  sets  out  fire  on  his  own  land 
is  responsible  for  the  damages  done  by  its  spreading  upon 
the  lands  of  others,  even  though  he  uses  due  diligence  to 
restrain  it." 

This  instruction  was  erroneous.  The  statute  relied  upon 
to  sustain  the  instruction  provides,  "  That  if  any  person 
or  persons  shall  set  on  fire,  or  cause  to  be  set  on  fire,  fP'iy 
woods,  prairies  or  other  grounds  whatever,  other  than  his 
own,  or  shall  permit  the  fire  set  out  by  him  to  pass  from 


OTTUMWA,  JUNE,  1850.  463 

De  France  v.  Spencer. 


his  own  prairie  or  woods  to  the  injury  of  any  person  or 
jiersoiis,  every  person  so  offending  shall,  on  conviction 
thereof,  for  every  such  offence  be  fined  in  any  sum  not 
exceeding  $50,  and  shall  be  liable  to  an  action  to  the 
party  injured  for  all  damages  which  he,  she  or  they  may 
have  sustained  in  consequence  of  such  fire."  Laws  of 
1846,  p.  3,  §  1. 

Aside  from  this  statute,  it  would  not  be  contended  that 
a  person  would  incur  liability  for  damages  sustained  by 
fire  passing  from  his  own  premises  if  he  had  used  proper 
caution  and  diligence  in  preventing  it.  This  princip)le  is 
fully  sustained  in  Clark  v.  Foote,  8  John.  R.,  421 ;  Bach- 
elder  V.  Hagan,  6  Ship.,  32?  Ellis  v.  Railroad  Co.,  2 
L-dele,  138. 

Does  our  statute  change  this  rule,  and  make  an  indi- 
vidual responsible  for  damages  done  by  fire  passing  from 
his  own  premises,  when  it  was  not  within  his  j^ower  to  pre- 
vent it  ?  We  think  not.  The  meaning  of  the  statute 
is,  that  a  person  shall  not  willingly  or  carelessly  permit 
or  suffer  the  fire  to  pass  so  as  to  injure  another,  or  if  he 
does  that,  he  should  be  liable  to  the  party  injured.  If  a 
person  does  all  in  his  power  to  prevent  the  fire  from  pass- 
ing, but  if,  in  opposition  to  all  of  his  efforts,  it  still  passes 
on  to  the  premises  of  another,  he  does  not,  in  contempla- 
tion of  the  statute,  per^mit  it  to  pass.  It  encroaches  upon 
his  neighbor  against  his  best  efforts,  without  his  consent 
or  jjermission,  and  he  should  not  be  held  liable  for  any 
damages  which  it  may  occasion.  While  a  person  has  a 
right  to  set  fire  to  his  own  grounds,  yet  if  he  does  so  when, 
from  their  contiguity  to  those  near  him,  or  from  high  wind 
or  other  cause,  the  result  would  lead  to  mischief,  in  such 
case  he  would  be  liable  if  injury  is  done  to  his  neighbor's 
property,  because  he  could  not  exercise  diligence  to  pre- 
vent the  fire  witli  that  success  as  if  the  fire  had  been  pru- 
dently set  out.  But  when,  from  good  motives,  and  under 
prudential  circumstances,  a  person  sets  fire  to  his  prairie 
(  r  woods,  and  uses  such  care  and  diligence  to  prevent  it 
from  spreading  as  a  man  of  ordinary  caution  would  use  to 


464  SUPREME  COURT  CASES, 

Shaffer  v.  Trimble. 

prevent  it  from  injuring  liis  own  property,  be  is  not  liable 
for  tbe  damage  wliicli  it  may  do  to  tbe  premises  or  pro- 
perty of  otliers. 

Ordinary  prudence  and  bonest  motives  in  setting  tbe 
fire,  and  due  diligence  in  preventing  it  from  spreading, 
are  all  tbat  is  necessary,  and  will  constitute  a  good  defence 
to  an  action  for  damages. 

Judgment  reversed. 


•&^ 


Slagle  and  Ackeson,  for  plaintiff  in  error, 
C.  Negus^  for  defendant. 


SHAFFER  et  al.  v.  TRIMBLE  et  al. 

Where  a  party  before  a  justice  of  the  peace  moves  for  a  continuance  of  the 
cause,  and  for  a  change  of  venue  before  objecting  to  the  summons,  such 
acts  will  amount  to  a  general  appearance,  which  cures  all  defects  in  the 
form  and  service  of  process. 

Erkor  to  Appanoose  District  Court. 

Opinion  hy  Greene,  J.  An  action  of  trespass  com- 
menced before  a  justice  of  tbe  peace  by  tbe  plaintiffs  in 
error.  We  infer  from  tbe  very  defective  transcript  in 
tbis  case,  tbat  on  tbe  return  day  of  tbe  writ  tbe  parties 
appeared,  and  tbe  plaintiffs  filed  tbeir  affidavit  for  a  con- 
tinuance, on  tbe  ground  tbat  witnesses  could  not  be  bad 
in  time  for  trial.  Tbe  defendants  admitted  tbe  facts 
wbicb  tbe  plaintiffs  expected  to  prove  by  tliose  witnesses, 
and  claimed  tbat  tbe  trial  sbould  proceed.  Tbe  defend- 
ants tbereupon  made  application  for  a  cbange  of  venue, 
wbicb  was  accordingly  granted,  and  tben  moved  to  dismiss 
tbe  proceedings,  for  tbe  reason  tbat  tbe  amount  of  damages 
claimed  by  plaintiffs,  including  interest  and  costs,  was  not 
indorsed  upon  tlie  summons  as  required  by  statute.  Rev. 
Stat.,  p.  317,  §  15.     Tbis  motion  was  overruled. 


OTTUMWA,  JUNE,  1850.  465 

Sliaffer  v.  Trimble. 

The  defendants  submitted  to  a  trial  upon  the  merits, 
before  the  justice  to  wliom  the  venue  was  changed.  Ver- 
dict and  judgment  for  the  plaintiffs. 

An  appeal  was  then  taken  to  the  district  court,  where 
the  defendants  renewed  their  motion  to  dismiss,  which  was 
granted. 

The  question  is  now  presented.  Did  the  court  below  err 
in  dismissii  g  the  suit  on  the  ground  that  the  amount  of 
plaintiffs'  claim  was  not  indorsed  on  the  summons  ?  This 
defect  would  justify  such  a  decision,  where  the  objection 
is  not  waived  by  the  general  appearance  of  the  defendants. 
The  transcript  in  this  case  shows  such  appearance  before 
any  objection  was  made  to  the  indorsement.  The  defend- 
ants appeared,  and  on  the  affidavit  made  for  a  continuance, 
admitted  certain  facts  to  be  true,  and  demanded  a  trial. 
Again  they  appeared  and  applied  for  a  change  of  venue 
before  the  motion  to  dismiss  first  appears  to  have  been 
made.  It  is  a  well  settled  rule,  and  one  which  has  been 
repeatedly  confii*med  by  this  court,  that  the  appearance 
of  a  defendant  cures  all  defects  in  a  summons,  or  in  the 
service  of  process.  Morris,  21,  113,  223,  403;  4  Blackf., 
137;  5  ib.,  97.  Besides,  the  defendants  waived  this  ob- 
jection by  availing  themselves  of  a  change  of  venue,  and 
by  going  to  trial  before  the  second  justice  without  making 
any  objection  before  him  to  the  indorsement  on  the  sum- 
mons. 

The  decision  of  the  district  court  in  dismissing  the  suit 
is  therefore  reversed,  and  the  cause  will  stand  for  trial  in 
that  court  upon  the  appeal. 

Judgment  reversed. 


W.  H.  Brumfield^  for  plaintiffs  in  error, 
S,  W.  Summers^  for  defendants. 


466  SUPHEME  COURT  CASES, 


Hall  V.  Bennett. 


HALL  et  al,  v.  BENNETT. 

Where  a  party  appeals  from  a  judgment  by  default,  he  may  on  first  appear- 
ance in  the  district  court  object  to  the  manner  or  style  in  which  he  is  sued. 

Where  there  is  a  manifest  variance  between  the  names  to  a  note  and  the 
names  to  a  record,  the  note  should  not  be  admitted  in  evidence. 

In  a  suit  commenced  before  a  justice  of  the  pesce,  a  misnomer  may  be  taken 
advantage  of  by  motion,  as  well  as  by  plea  in  abatement. 

Error  to  Polk  District  Court. 

Opinion  by  Greene,  J.  This  was  an  action  of  assump- 
sit commenced  before  a  justice  of  the  peace,  in  the  name 
of  B.  Bennett  against  S.  Hall  and  B.  F.  Jesse.  A  judg- 
ment hj  default  was  rendered  against  the  defendants. 
They  then  took  the  case  to  the  district  court  by  appeal, 
and  there  moved  to  dismiss  the  suit  because  they  were  not 
sued  by  their  Christian  names  nor  even  by  proper  initials. 
This  motion  was  overruled,  although  it  appeared  that 
the  suit  was  commenced  and  prosecuted  against  S.  Hall 
and  B.  F.  Jesse,  instead  of  against  Townsend  Hal]  and 
Benjamin  Jesse.  The  defendants  then  objected  to  the 
admission  of  a  certain  note  whicli  the  plaintiff  offered  in 
evidence,  because  tlie  note  was  in  no  way  referred  to  or 
identified  in  the  proceedings  before  the  justice,  and  in  no 
way  appeared  to  be  the  instrument  u})0u  which  the  cause  of 
action  was  predicated.  But  the  court  overruled  this  objec- 
tion, and  admitted  the  note  in  evidence.  In  both  of  these 
particulars,  the  ruling  of  the  court  below  was  obviously 
erroneous.  Upon  their  first  appearance  to  this  action, 
the  defendants  objected  to  the  defective  manner  in  which 
they  were  sued.  It  cannot,  therefore,  be  assumed  that  the 
irregularity  was  waived  by  appearance.  Had  they  been 
sued  upon  a  note  to  which  the  initials  only  of  their  Chris- 
tian names  had  been  subscribed,  there  might  have  been 
some  justification  for  the  decision  of  the  court  below. 
They  might  then  have  been  sued  in  a  name  which  they 
had  themselves  acknowledged.     But  in  this  case,  there 


OTTUMWA,  JUNE,  1850.  4G7 

Graves  v.  Cole. 

was  no  note  adduced  signed  in  the  name  of  S.  Hall  and 
V>.  F.  Jesse,  and  j  ayable  to  B.  Bennett.  The  note  offered 
in  the  district  court,  and  improperly  admitted,  was  signed 
by  Townsend  Hall  and  Benjamin  F.  Jesse,  and  made  pay- 
able to  Benjamin  Bennett.  Thus  the  misnomer  in  the  suit 
was  manifest,  and  in  an  action  commenced  before  a  jus- 
tice of  the  peace  might  be  taken  advantage  of  on  motion, 
as  well  as  by  a  plea  in  abatement.  The  variance  between 
the  parties  to  the  note,  and  the  parties  to  the  suit  is  equally 
manifest,  and  rendered  the  note  inadmissible  as  evidence, 
even  if  the  transcript  had  shown  that  this  note  constituted 
the  same  cause  of  action  upon  which  the  judgment  of  the 
justice  was  rendered.     Rev.  Stat.,  p.  335,  §  15. 

Judgment  reversed. 

W.  H.  Seevers,  for  plaintiff  in  error, 

J,  M.  Ferry,  for  defendant. 


GRAVES  V.  COLE. 

In  the  district  court  all  writs  should  be  made  returnable  to  the  first  day  of 
the  term,  but  if  a  writ  is  defective  in  this  particular,  it  may  be  corrected 
by  the  court,  or  cured  by  the  appearance  of  the  defendant. 

If  a  writ  of  attachment  is  made  returnable  to  the  third  day  of  the  term,  it 
is  doubtful  whether  it  would  justify  the  court  in  dissolving  the  attachment 
Uen. 

Error  to  Wapello  District  Court. 

Opinion  by  Greece,  J  This  case  is  now  before  us  on 
petition  for  rehearing.  The  case,  as  first  tried,  is  reported 
in  1  G.  Greene,  405.  It  is  now  claimed  that  the  judgment 
of  the  court  below  was  improperly  reversed,  as  there  was 
a  material  defect  in  the  writ  of  attachment  which  was  not 
amended,  and  which  justified  the  action  of  the  court  below 


468  SCJPHEME  COUllT  CASES, 

Graves  v.  Cole. 

in  dissolving  tlie  attachment  and  dismissing  the  writ. 
The  defect  to  which  our  attention  is  now  directed  for  the 
first  time  is,  that  the  writ  of  attachment  was  made  return- 
able to  the  third  instead  of  the  first  day  of  the  term,  as  is 
directed  by  statute.  Rev.  Stat.,  p.  408,  §  1.  It  appears 
that  the  summons  was  made  returnable  in  the  same  irre- 
gular manner.  But  the  court  decided  that  the  attachment 
was  defective,  and  the  summons  good.  Even  that  of  itself 
would  justify  the  former  action  of  this  court  in  reversing 
the  judgment,  for  if  the  defect  complained  of  would  in- 
validate the  one  ■\\T.*it,  it  would  necessarily  have  the  same 
effect  upon  the  other.  But  the  irregularity  was  such  that 
it  might  have  been  corrected  in  both  writs  by  the  court, 
or  cured  by  the  appearance  of  the  defendant.  If  the 
defect  in  the  summons  was  waived  by  such  appearance, 
the  defect  in  the  writ  of  attachment  was  waived  by  the 
same  act;  for  an  appearance  to  the  action  could  not  but 
be  regarded  as  an  appearance  to  both  writs.  Besides,  it 
may  well  be  questioned  whether  such  an  irregularity  could 
justify  a  court  in  dissolving  an  attachment  lieu,  if  good  in 
all  other  particulars,  even  if  the  objection  had  been  made  in 
time.  It  was  a  mere  defect  in  form,  amendable  on  terms 
discretionary  with  the  court,  and  which  could  not  impair 
the  authority  of  the  officer  or  the  validity  of  his  levy,  nor 
work  any  inconvenience  to  the  party.  But  if  the  defend- 
ant had  not  appeared,  the  court  would  not  have  been 
authorized  to  render  judgment  against  him  on  such 
attachment  before  the  third  day  of  the  term,  as  mentioned 
in  the  writ.  We  therefore  see  no  reason  for  disturbing 
our  former  decision  in  this  case. 

Judgment  reversed. 

Wright  and  Knapp,  for  plaintiff  in  error. 

H,  B,  Hendershott^  for  defendant. 


OTTUMWA,  JUNE,  1850.  4G9 


steel  V.  Davis  Co. 


STEEL  V.  DAVIS  CO. 

An  action  may  be  maintained  against  tiie  commissioners  of  a  county,  on  a 
general  unconditional  order  drawn  by  them  for  the  payment  of  money. 

The  rule  that  an  order  must  be  presented  for  payment  within  a  reasonable 
time,  and  notice  oi  its  dishonor  given  to  the  drawer,  is  not  applicable  to 
county  orders. 

Error  to  Davis  District  Court. 

Opinion  hy  Greene,  J.  Samuel  Steel  sued  the  board 
of  commissioners  of  the  count}^  of  Davis,  in  an  action  of 
debt  on  a  county  order  under  seal.  The  order  was  drawn 
b)^  the  commissioners  of  said  county,  tested  by  their  seal 
and  clerk,  and  directed  the  treasm'er  of  Davis  county  to 
pay  Samuel  Steel,  or  bearer,  $900,  with  10  per  cent, 
interest;  the  interest  to  be  paid  semi-annually.  Date 
of  order,  April  11,  1848;  presented  for  payment,  July  2, 
1849,  and  payment  refused.  To  the  declaration  the 
defendant  demurred,  and  the  demurrer  was  sustained. 
Upon  this  decision,  the  plaintiff  brought  the  case  by  writ 
of  error  to  this  court.  The  only  question  raised  is,  Can 
an  action  be  maintained  against  the  county  commissioners 
on  a  general  order  drawn  by  them  for  the  payment  of 
money  ? 

The  power  of  the  county  commissioners  to  issue  such 
attested  orders  is  not  denied;  but  it  is  contended  that 
the  holders  of  such  orders  cannot  maintain  an  action  upon 
them ;  that  they  are  only  entitled  to  payment  in  the  order 
of  their  acceptance,  so  fast  as  the  money  comes  into  the 
county  treasury ;  and  that  the  commissioners  can  only  be 
Bued  where  they  exercise  a  power  not  conferred,  or  refuse 
or  neglect  to  perform  a  duty  enjoined,  by  law.  By  statute, 
the  county  commissioners  are  considered  a  body  corporate 
and  politic,  and,  as  such,  "  may  sue  and  be  sued,  plead  and 
be  impleaded,  defend  and  be  defended,  answer  and  be  an- 
swered unto,  in  any  court  either  in  law  or  equity."  Rev. 
Stat.,  123,  §  4.     Among  the  powers  delegated  to  them  by 


470  SUPREME  COURT  CASES, 

Steel  V.  Davis  Co. 

that  section,  we  find  that  they  are  authorized  to  examine, 
allow  and  settle  all  accounts  of  the  receipts  and  expendi- 
tures of  the  money  of  the  county,  and  have  the  care  of  the 
county  property,  and  management  of  the  county  funds  and 
business.  It  must  he  presumed  that  the  order  in  this  case 
was  drawn  pursuant  to  the  authority  conferred  upon  the 
commissioners  to  examine  and  allow  accounts ;  and  as  it 
was  not  made  payable  upon  any  contingency,  or  out  of  any 
particular  fund  to  be  created,  but  made  unconditionally 
payable  on  presentment  to  the  treasurer,  it  became  at  once 
due  upon  such  presentment.  It  has  been  decided  by  this 
court,  in  Brown  v.  Johnson  Co.,  1  G.  Greene,  486,  that  a 
judgment  may  be  rendered  against  county  commissioners 
upon  a  county  order  due  at  the  time  suit  was  instituted. 
If  a  judgment  may  be  rendered  against  them  on  such  an 
order,  it  necessarily  follows  that  a  suit  may  be  instituted 
u^jon  it,  and  the  action  legally  maintained. 

Whenever  the  board  of  commissioners  are  in  default, 
whenever  they  neglect  to  perform  their  contracts  or  to  pay 
their  liabilities,  redress  may  be  sought  against  them  by 
the  injured  party  in  the  same  way  that  it  may  against 
any  other  body  corporate  which  is  authorized  by  law  to 
sue  and  be  sued.  By  the  unqualified  language  of  the  order 
in  this  case,  the  commissioners  direct  payment  uncon- 
ditionally, and  thus  in  legal  contemplation  undertake  that 
funds  are  in  the  hands  of  the  treasurer  to  pay  the  same 
on  presentment.  They  control,  limit  or  extend  county  ex- 
penditures, have  chai'ge  of  the  county  property,  and  the 
procurement  and  management  of  the  county  revenue.  It  is, 
then,  their  duty  to  keep  the  county  expenditures  within  the 
resources  which  may  legally  come  under  their  dh'ection ; 
and  it  is  especially  their  duty  to  provide  means  for  the 
payment  of  all  liabilities  contracted  by  them  in  "  trans- 
acting county  business."  If  they  fail  in  any  of  their  con- 
tracts or  undertakings,  the  injured  party  can  seek  redress 
by  mstituting  his  suit  against  them.  The  very  authority 
which  enables  them  to  contract  within  their  defined 
powers,  and  to  sue  in  any  court,  provides  that  they  may 


OTTUMWA,  JUNE,  1850.  471 


Steel  V.  Davis  Co. 


be  sued.  This  liability  to  be  sued  is  not  limited  to  any 
particular  delinquency  in  the  discharge  of  their  duties, 
but  extends  generally  to  all  wrongs  by  which  the  rights 
of  others  may  be  affected.  This  we  regard  as  the  obvious 
intention  of  the  act  organizing  a  board  of  county  commis- 
sioners in  each  county. 

The  declaration  in  this  case  contained  all  necessary 
allegations  to  enable  the  plaintiff  to  recover.  It  shows 
that  the  order  was  presented  to  the  treasurer,  that  pay- 
ment was  demanded  and  refused.  The  commissioners 
having  failed  in  their  undertaking  to  have  the  funds 
ready,  the  action  against  them  was  clearly  maintainable. 

The  fact  that  the  order  was  made  to  draw  interest  at 
10  per  cent.,  to  be  paid  semi-annually,  cannot  be  con- 
sidered as  an  extension  of  the  day  of  payment  to  an  in- 
definite period,  as  is  claimed  by  counsel.  It  is  a  positive 
order  upon  the  treasurer  to  pay  the  money,  with  10  per  cent, 
interest  from  date  until  paid,  and  to  pay  the  interest  semi- 
annually. Thus  it  was  left  discretionary  with  the  holder 
of  the  order  to  demand  the  principal  at  once,  or  to  retain 
the  order  and  collect  the  interest  semi-annually,  until  he 
chose  to  present  it  for  the  principal.  The  drawers  of  the 
order  being  so  intimately  connected  with  the  drawee  as 
to  create  and  control  the  funds  in  his  hands,  the  rule  that 
it  must  be  presented  within  a  reasonable  time,  and  notice 
of  its  dishonor  given  to  the  drawer,  would  not  be  appli- 
cable to  this  case.  It  has  been  held  that  such  notice  is 
not  necessary  where  the  drawer  and  acceptor  are  partners. 
Ji/iet  v.  Foe,  2  How.  U.  S.,  457;  Gowan  v.  Jackson,  20 
John.,  176.  The  connection  between  the  commissioners 
and  treasurer  of  a  county  is  at  least  as  intimate  as  that 
between  copartners,  and  may,  with  great  propriety,  come 
under  the 'rule.  An  order  drawn  by  the  commissioners 
upon  the  treasurer,  is  in  effect  the  same  as  an  order  drawn 
by  the  county  upon  itself,  to  be  paid  under  the  direction  of 
one  officer  by  ajiother ;  the  same  as  one  made  by  an  indi- 
vidual upon  himself,  and  to  be  paid  by  his  agent  or  clerk 
at  the  depository  of  his  funds,  and  thus  may  be  regarded 


472  SUPREME   COURT  CASES, 

steel  V.  Davis  Co. 

more  like  a  promissory  note  than  a  bill  of  exchange. 
Chit,  on  B.,  28;  Vamer  v.  Noblehorougk,  2  Greenl.,  125. 
Regarding  the  order  in  this  case  in  effect  the  same  as  a 
promissory  note,  the  matm-ity  of  the  indebtedness  and  the 
immediate  liability  of  the  county  to  a  suit  upon  it,  cannot, 
we  think,  be  questioned. 

The  case  of  Hasey  v.  White  Pigeon  Beet  Sugar  Co., 
1  Doug.,  193,  has  much  analogy  to  the  one  at  bar.  In  that 
case  the  body  corporate,  by  its  president  and  secretary, 
gave  an  order  upon  its  treasurer  to  pay  K,  or  bearer,  a 
certain  sum  of  money.  The  form  of  the  order  was  iu  sub- 
stance the  same  as  the  one  in  this  case ;  and  the  incorpora- 
tion was  rendered  liable  to  be  sued  to  no  greater  extent 
than  our  counties  are,  and  still  the  right  to  sue  that 
incorporation  upon  such  an  order  was  not  for  a  moment 
questioned,  and  it  was  held  that  the  order  was  the  same  in 
effect  as  a  promissory  note ;  that  "  it  must  be  understood 
to  be  a  promise  to  pay  the  amount  presently,  an  acknow- 
ledgment of  an  immediate  and  unconditional  indebted- 
ness, for  which  the  plaintiff  had  a  right  to  bring  his  suit 
at  once." 

Apply  the  analogies  of  that  case  to  this,  and  it  appears 
manifest  that  the  demurrer  to  the  declaration  was  erro- 
neously sustained. 

When  the  county  commissioners  desire  to  avoid  the 
immediate  liability  of  a  suit  upon  county  orders,  it  is  an 
easy  matter  for  them  to  do  so,  by  expressing  the  intended 
condition  or  period  of  payment  in  the  order  itself.  If  to 
be  paid  out  of  funds  yet  to  be  raised,  and  not  otherwise 
appropriated,  it  should  be  so  expressed.  If  no  such  con- 
dition or  qualification  is  named  in  an  order,  it  follows, 
as  a  legal  consequence,  that  it  is  due  and  payable  on 
presentment. 

Judgment  reversed. 

D.  P.  Palmer  and  A.  Hall,  for  plaintiff  in  error. 

H.  M.  Shelby  and  S.  G.  M^Achran,  for  the  county. 


CASES  m  LAW  AND  EQUITY, . ' 


oetermhted  in  thx 


SUPREME  COURT  OF  THE  STATE  OF  IOWA, 

IOWA  CITY,  JUNE  TERM,  A.  D.  1850, 
In  the  Fourth  Year  of  the  State, 


How.  JOSEPH  WILLIAMS,  Chit/ Jutttee. 
Ho-v.  JOHN  F.  KINXEY,  )    ,    , 
Hon.  GEO.  GREENE,         J  -Juagea. 


HALL  V.  WASHINGTON"  CO. 

Where  an  attorney  is  appointed  by  the  court  to  defend  a  pauper  prisoner, 

the  county  is  liable  for  his  fees. 
Whicker  v.  Cedar  Co.,  1  G.  Greene,  217  ;  overruled 

Error  to  Washington  District  Court. 

Opinion  by  Williams,  C.  J.  John  C.  Harriman  was 
indicted  for  murder  in  the  district  court  of  Washington 
county.  He  was  tried  and  convicted.  A  writ  of  error 
was  sued  out  on  his  hehalf.  The  case  was  tried  at  the 
June  term  of  the  supreme  court  at  Iowa  city,  and  the 
judgment  of  the  district  court  reversed.  When  the  cause 
Vol.  II.  31 


474  SUPREME  COURT  CASES, 


Hall  V.  Washinarton  Co. 


was  called  for  trial  in  tlie  supreme  court,  the  prisoner 
applied  for  tlie  appointment  of  a  suitable  person  to  act  as 
his  attorney  and  counsellor.  Whereupon  the  court,  in 
compliance  with  the  statute,  appointed  and  directed  J.  C. 
Hall,  Esq.,  to  attend  to  his  case  as  attorney  and  counsel- 
lor, and  his  services  were  rendered  accordingly.  Mr  Hall, 
after  the  trial  and  judgment,  obtained  of  the  court  a  cer- 
tificate of  his  appointment,  the  services  rendered,  and 
that  $100  was  a  reasonable  charge  for  them.  He  soon 
after  presented  his  bill  for  the  $100,  accompanied  by 
the  certificate  of  the  supreme  court  to  the  board  of  com- 
missioners of  Washington  county,  at  their  session  for 
allowance.  The  commissioners  refused  to  allow  it,  and 
entered  their  decision  to  that  effect.  An  appeal,  in  com- 
pliance with  the  statute,  was  taken  from  the  commission- 
ers' court  to  the  district  court  of  the  county.  At  March 
term  of  the  district  court,  the  cause  was  tried,  and  judg- 
ment rendered  against  the  plaintiff  Hall  for  costs  of  suit, 
on  the  ground  that  the  county  was  not  legally  liable  to 
pay  for  services  so  rendered. 

The  only  question  for  decision  here,  is,  as  to  the  county 
of  Washington  being  liable  for  the  services  of  the  attor- 
ney rendered  in  pursuance  of  the  requirement  of  the 
statute  in  this  case.  The  statute  (Rev.  Stat.,  155,  §  64) 
provides,  that  "  The  court  shall  assign  counsel  to  defend 
the  prisoner,  in  case  he  cannot  procure  counsel  himself." 
It  was  upon  this  statute' the  court  acted,  being  satisfied 
that  Harriman  was  a  pauper,  and  unable  to  procure  coun- 
sel for  himself.  The  question  has  been  heretofore  adjudi- 
cated by  the  supreme  court  of  this  state.  Whicher  v.  Cedar 
County^  1  Gr.  Greene,  217.  The  judgment  of  the  court 
was  then  given  by  a  mere  majority  of  the  judges,  one  dis- 
senting, and  adverse  opinions  were  delivered.  It  certainly 
is  the  great  design  of  government,  and  it  should  be  the 
aim  of  the  judges  to  administer  the  law  as  it  is,  that  its 
end — the  establishment  of  right — may  be  secured.  In 
accomplishing  this  task,  which  is  often  difficult,  minds 
enlightened,  and  of  the  purest  intention,  will  differ  in  the 


IOWA  CITY,  JUNE,  1850.  475 


Hall  V.  ■Washington  Co. 


couclusiou.  It  is  also  true  that,  whilst  the  estaHishment 
of  right  between  man  and  man  is  the  paramount  object  of 
law,  it  is  highly  important  that,  as  a  rule  of  action,  it 
should  be  fixed  and  certain,  so  that  it  may  be  known  and 
observed  by  those  who  are  required  to  be  subject  to  it. 
A  decision  made  by  the  supreme  court  of  the  state  should 
not  be  reconsidered  and  reversed  upon  doubtful  ground, 
or  little  consideration.  However,  where  the  principle 
decided  has  a  direct  and  important  bearing  on  the  ques- 
tion of  right,  in  view  of  the  essential  and  permanent  in- 
terests of  community,  it  is  the  duty  of  the  court,  regard- 
ing its  own  responsibility,  upon  due  occasion,  to  review 
its  former  decisions  with  care  and  candor.  This  being 
done,  if  convinced  and  satisfied  of  error  in  the  former 
decision,  private  and  public  interest,  as  well  as  justice  to 
the  court  itself,  require  that  its  judgment  should  be  cor- 
rected. In  a  court  of  last  resort,  this  is  the  only  mode  of 
correction. 

It  is  quite  probable  that  the  district  court,  in  deciding 
the  case  at  bar,  was  governed  by  the  case  of  Whicker  v. 
Cedar  County.  The  judgment  is  in  accordance  with  the 
doctrine  of  that  case.  But  we  cannot  coincide  with  the 
majority  of  the  court  in  maintaining  the  doctrine  there 
expressed  by  them. 

The  prisoner  Harriman  was  a  pauper,  unable  to  procure 
counsel  for  himself  on  trial  before  the  supreme  tribunal 
of  the  state,  for  the  highest  ofience  known  to  the  law ;  his 
life  at  stake  upon  the  issue,  he  threw  himself  as  a  citizen 
upon  the  provision  of  the  law  of  his  country,  for  the  aid 
and  protection  which  it  guarantees  to  every  citizen,  when 
arraigned  before  the  proper  tribunal  for  trial. 

His  complaint  was,  that  in'* the  proceedings  of  the  dis- 
trict court,  which  had  resulted  in  his  conviction,  there  Avas 
error ;  that  he  had  not  been  convicted,  by  the  due  course 
of  the  law  of  the  land.  He  claimed  the  right  of  a  citizen 
of  Washington  county^  under  the  law  of  the  state,  to  have 
counsel  in  conducting  his  case  before  the  court,  being  un- 
able to  procure  that  counsel  for  himself.     Without  disre- 


476  SUPREME  COUET  CASES, 

Hall  V.  Washington  Co. 


garding  the  law  of  the  state,  the  court  conld  not  deny  him 
this  right.  Vide  Rev.  Stat.,  155.  Mr  Hall  was  duly  ap-- 
pointed.  He  acted  by  authority  of  the  court.  The  court 
acted  in  obedience  to  the  express  mandate  of  the  statute. 
Here,  we  think,  is  a  case  of  statutory  obligation,  fixing  a 
liability  on  the  proper  county  to  pay  for  the  services  of 
the  attorney.  The  service  rendered  was  not  voluntary  on 
the  part  of  the  court  or  the  attorney,  but  it  was  in  obe- 
dience to  law.  The  court  was  bound  to  comply  with  the 
requirement  of  the  statute ;  and  the  attorney,  as  an  officer 
of  the  court,  could  not  refuse  to  act.  Where  an  act  ot 
service  is  performed  in  obedience  to  direct  mandate  of 
statutory  law,  under  the  direction  of  a  tribunal  to  which  the 
enforcement  of  that  law  is  committed,  reasonable  compen- 
sation to  the  person  who  performs  that  service  is  a  neces- 
sary incident ;  otherwise,  the  arm  of  the  law  will  be  too 
short  to  accomplish  its  designs.  If  attorneys,  as  officers 
of  the  court,  have  obligations  under  which  they  must  act 
professionally,  they  also  have  rights  to  which  they  are 
entitled,  and  which  they  may  justly  claim  in  common  with 
other  men  in  the  business  of  life.  Among  these  rights, 
that  of  reasonable  compensation  for  services  rendered  in. 
their  profession  is  justly  to  be  considered.  The  exercise 
of  judicial  power,  in  order  to  effectuate  thj  common  and 
statute  law,  frequently  becomes  necessary,  and  must  exist 
incidentally.  By  virtue  of  such  power,  auditors,  commis- 
sioners, masters  in  chancery,  &c.,  are  appointed  and  act, 
and  proper  compensation  is  awarded  to  them.  All  the 
officers  of  the  court  are  recognized  as  being  on  just  con- 
sideration entitled  to  fees  for  official  services  performed. 
All  that  has  been  done  by  the  law  is  merely  to  limit  them 
in  amount.  Why  should  the  attorney  at  law  be  made  an 
exception  to  this  general  principle  ?  We  see  no  good  rea- 
son for  it.  His  time,  labor  and  professional  skill  are  his 
own.  He  should  not  be  required  to  bestow  them  gratui- 
tously at  the  will  of  the  court,  any  more  than  should  any 
other  officer.  But  it  is  enough  here  to  say  that,  whilst 
the  statute  requires  the  court  to  ajopoint  counsel  in  a  case 


IOWA  CITY,  JUNE,  1850.  477 


Hall  V.  Washington  Co. 


like  this,  it  is  silent  on  the  subject  of  pay  for  his  services. 
It  leaves  that  matter  to  be  disposed  of  upon  the  principles 
of  the  practice  of  the  common  law.  There  certainly  is  no 
legal  exception  as  to  an  attorney,  so  as  to  distinguish  his 
case  from  any  other  functionary.  In  deciding  the  case  of 
Whicker  V.  Cedar  Co.,  the  court  took  the  ground,  "that 
there  is  no  statute  providing  for  compensation  for  services 
rendered  in  such  cases.  If  the  board  of  county  commis- 
sioners choosy  to  compensate  an  attorney  for  such  services, 
we  see  no  objection.  But  this  is  a  matter  left  to  their 
discretion."  We  cannot  see  how  this  position  could  operate 
in  denial  of  the  plaintiff's  right  of  action.  It  seems  to 
be  admitted  there,  that  the  attorney  was  entitled  to  pay 
for  his  services.  That  the  commissioners  had  proper 
authority  to  allow  his  fees ;  but  it  is  decided  that  they 
might  make  the  allowance  or  not,  in  their  discretion.  This, 
we  think,  is  untenable.  If  the  attorney  was  entitled  to 
his  compensation,  under  the  law,  and  if  the  commissioners 
were  authorized  to  pay  him  for  his  services,  they  had  and 
could  exercise  no  discretionary  power.  They  are  officially 
existent  only  by  operation  of  the  statute  law.  They  could 
only  act  under  its  authority.  In  this  case,  the  right  of 
an  action  in  the  plaintiff  does  not  arise  from  an  express 
contract ;  but  it  is  necessarily  given  by  the  statute.  The 
statute  authorizes  the  appointment  of  counsel,  in  defence 
of  a  pauper  when  accused  of  crime,  in  view  of  the  right  of 
that  counsel  to  compensation  for  the  service  rendered,  in 
obedience  to  that  law,  as  an  incident  necessarily  attaches 
a  liability  for  the  services  to  the  county  which  is  properly 
chargeable  with  the  maintenance  of  the  proceeding.  This 
view  of  the  case  is  sustained  by  the  supreme  court  of 
Vermont.  Wolcott  v.  Wolcott,  4  Vt.,  37  ;  Vermillion  Co. 
V.  Knight,  1  Scam.,  97. 

In  the  case  of  Whicker  v.  Cedar  Co.,  the  court  adverts 
to  the  necessity  of  legislative  interference  in  order  to 
provide  for  compensation  of  this  kind.  We  are  of  the 
opinion,  that  the  act  requiring  the  court  to  appoint  counsel 
for  the  prisioner  is  quite  sufficient  for  that  purpose,  as  we 


478  SUPREME  COURT  CASES, 

Hall  V.  Washington  Co. 

have  shown.  If  it  were  not,  however,  when  the  duty 
enjoined  had  been  performed  by  the  counsel,  his  right  to 
his  pay  for  it  had  accrued.  The  prisoner  being  a  pauper, 
the  liability  attached  to  the  county  of  which  he  was  a 
citizen.  The  right  of  the  attorney  to  compensation  was 
complete,  without  further  legislative  enactment.  This  is 
not  a  case  of  voluntary  services.  It  is  a  fundamental  rule 
of  right,  established  by  the  constitution  of  the  United 
States,  "that  private  property  shall  not  be  taken  for 
public  use  without  just  compensation."  The  service  was 
required  by  competent  legal  authority,  which,  having  been 
rendered,  the  attorney  is  entitled  to  his  pay  for  it. 

It  has  been  urged  that  the  prosecution  being  conducted 
by  a  prosecuting  attorney,  who  is  paid  by  the  county, 
there  is  an  inconsistency  in  requiring  an  attorney  to  act 
in  defence  of  the  accused,  and  then  to  allow  him  compen- 
sation from  the  county  treasury.  We  have  alread}^  shown 
that  the  prisoner  was  a  pauper,  depending  on  the  county 
in  this  matter.  But  furthermore,  he  is  a  citizen  to  whom 
rights  in  common  with  others  are  guaranteed  by  the  con- 
stitution, among  which  is  "  the  assistance  of  counsel  for 
his  defence."  Art.  6,  Constitution,  U.  S.  He  in  this,  was 
entitled  to  the  protection  of  the  law,  which  has  humanely 
provided  for  every  citizen  in  like  circumstances,  "  a  speedy 
and  public  trial  by  an  impartial  jury,"  and  the  assistance 
of  counsel  for  his  defence,  so  that  he  may  have  a  fair 
opportunity  of  making  his  innocence  manifest.  We  con- 
sider this  view  of  the  design  of  our  legislative  enactment, 
and  the  right  of  the  attorney  under  it,  as  conforming  to 
the  enlightened  spirit  of  the  present  age.  So  limited  and 
restricted  is  the  sphere  of  action  prescribed  for  the  judge, 
as  to  proceedings  on  trial  touching  matters  of  fact,  that 
without  the  aid  of  able  and  experienced  counsel,  the  poor 
and  ignorant  man  would  often  find  accusation  and  prosecu- 
tion tantamount  to  conviction.  The  innocent  would  have 
their  lot  with  the  guilty  in  suffering  the  penalty  of  the  law. 
It  is  not  presumable  that  this  humane  provision  of  the 
law  for  the  protection  of  the  accused,  but  innocent,  poor 


IOWA  CITY,  JUNE,  1850.  479 

Diltz  V.  Chambers. 

citizen,  was  intended  by  the  legislature  to  be  at  the  ex- 
pense and  in  violation  of  the  right  of  the  citizen,  whose 
profession  is  that  of  an  attorney. 

This  view  of  the  question  is  ably  presented  in  the  opinion 
of  the  judge  who  dissented  in  the  case  of  Whicker  v. 
Cedar  Co.  By  this  judgment  of  the  case,  the  constitu- 
tional and  legal  rights  of  the  accused  citizen  are  secured, 
as  also  are  those  of  the  attorney  at  law.  The  consistency 
of  the  law  is  preserved,  and  the  liability  is  justly  applied. 

The  judgment  of  the  district  court  is  reversed  and  a 
venire  de  novo  awarded,  for  proceedings  to  be  had  not 
inconsistent  with  this  opinion. 

Judgment  reversed. 

N,  Everson,  for  plaintiff  in  error. 

Patterson  and  Smyth,  for  the  county. 


DILTZ  et  al.  v.  CHAMBERS. 

A  writ  is  not  served  upon  a  party  in  the  manner  provided  by  statute  by 
"  leaving  an  attested  copy  at  liis  place  of  residence  with  a  member  of  the 
family  over  the  age  of  fifteen  years,"  unless  the  contents  of  the  writ  are 
stated. 

It  is  error  to  render  judgment  by  default  against  a  party,  unless  he  was 
legally  served  with  process. 

Error  to  Cedar  District  Court. 

Opinion  hy  Kinney,  J.  Action  of  assumpsit  brought 
by  Chtxmbers  against  Stockton  and  Diltz  upon  a  i^romis- 
sory  note  calling  for  $220.  A  summons  was  issued  upon 
which  the  sheriff  made  the  following  return:  "  Served 
the  within  on  Peter  Diltz  on  the  31st  day  of  August, 
A.D.  1849,  by  leaving  an  attested  copy  at  his  place  of 
residence  witli  a  member  of  the  family,  over  the  age  of 


480  SUPREME  COURT  CASES, 

Diltz  V.  Chambers. 

fifteen  years.     Served  the  within  on  James  D.  Stockton, 
by  reading." 

Stockton  pleaded  to  the  declaration,  and  a  judgment  was 
rendered  against  Stockton,  upon  the  issue  joined,  and 
ao-ainst  Diltz  hv  default.  The  defendants  below  sued  out 
a  writ  of  error,  and  the  only  error  assigned  necessary  to 
consider  is,  that  the  court  erred  in  rendering  judgment 
against  Peter  Diltz  by  default,  when  there  had  not  been 
any  legal  service  upon  him. 

The  statute  provides,  "  that  all  writs  of  summons  issuing 
from  any  court  of  record  in  the  territory,  shall  be  served 
by  reading  to  the  defendant  if  found,  and  if  not  found  by 
leaving  a  copy  thereof  attested  by  the  officer  serving  the 
same  at  his  dwelling  house,  or  usual  place  of  abode,  with 
some  person  of  the  family  of  fifteen  years  of  age  or  up- 
wards, and  stating  the  contents  to  said  person."  Rev. 
Stat,  p.  475,  §  30. 

This  is  a  plain  statutory  requirement.  It  directs  the 
manner  of  serving  a  summons  when  the  defendant  shall 
not  be  found.  It  requires  the  officer  to  do  two  things, 
both  of  which  are  necessary  to  constitute  the  service,  to 
wit,  leaving  a  copy  with  some  member  of  the  family  of  the 
age  of  fifteen  or  upwards,  and  stating  the  contents  of  the 
summons  to  said  person.  If  either  of  these  is  neglected 
the  service  is  not  complete.  Stating  the  contents  is  as 
essentially  a  part  of  the  service  as  leaving  the  copy. 
Neither  can  be  dispensed  with.  When  the  statute  points 
out  the  manner  of  service,  the  officer  must  follow  its 
directions.  It  is  the  service  which  brings  the  defendant 
into  com-t,  and  unless  the  return  shows  the  writ  to  have 
been  served  according  to  the  statute,  the  defendant  is  not 
obliged  to  respond  to  it.  The  return  of  the  officer  should 
show  a  strict  compliance  with  the  law,  as  nothing  will  be 
presumed  in  its  favor,  when  it  appears  that  the  require- 
ments of  the  statute  have  not  been  observed.  In  this  case, 
Diltz  not  having  been  legally  served  with  process,  he  was 
not  in  default,  and  hence  a  judgment  by  default  was 
improperly  rendered  against  him. 


IOWA  CITY,  JUNE,  1850.  481 

Carothers  v.  Tan  Hagan. 

The  judgment  agaiust  him  is  therefore  reversed  at  the 
costs  of  the  defendant  in  error,  and  the  judgment  against 
Stockton  is  affirmed. 

John  P.  Cook,  for  plaintiffs  in  error, 

S,  A,  Bissell,  for  defendant. 


»**♦■<■ 


CAEOTHEES  et  al  v.  VAN  HAGAN"  et  al 

In  an  action  of  replevin  against  two  or  more,  it  is  error  to  instruct  the  jury, 
that  "  if  either  of  the  defendants  was  not  guilty,  they  must  find  for  both  ; 
that  one  alone  could  not  be  found  guilty." 

Error  to  Muscatine  District  Court. 

Opinion  by  Greene,  J.  Replevin  by  Carothers  against 
J.  P.  and  J.  B.  Van  Hagan.  Verdict  before  a  justice  for 
the  defendants,  and  an  appeal  taken  by  plaintiffs  to  the 
district  court,  where  the  jury  found  one  of  the  defendants 
not  guilty;  and  thereupon  both  were  discharged  upon  the 
instruction  of  the  judge, -that  if  either  of  the  defendants 
was  not  guilty,  they  must  find  for  both  of  them ;  that  one 
alone  could  not  be  found  guilty  unless  both  were,  as 
charged  in  the  affidavit,  even  if  the  property  did  not  in 
fact  belong  to  the  plaintiffs.  With  much  propriety,  the 
plaintiffs  contend  that  this  instruction  was  erroneous.  No 
such  principle  is  recognized  by  our  statute ;  and  as  a  gen- 
eral rule  of  law,  in  all  actions  for  Avrongs,  any  of  the  wrong- 
doers may  be  jointly  or  severally  proceeded  against,  and 
the  misjoinder  of  an  innocent  person  b}'  mistake  Avill  not 
defeat  the  action,  as  it  might  in  a  suit  on  contract.  Where 
several  axe  sued  for  a  tort,  one  or  more  may  be  convicted 
nnd  held  in  damages,  although  a  part  of  them  be  ac- 
quitted. 1  Chit.  PL,  1)8,  99 ;  1  ^Sand.,  291  d  (mx) ;  6  T.  P., 
.  v6;  Gould  PI.,  209,  §  7.5;  1  Cowen's  Trs.,  560, §  4;  1  Salk., 


482  SUPREME  COURT  CASES, 

McCasky  v.  School  District  No.  1,  &c. 

32.  As  replevin  is  founded  in  tort,  a  failure  to  sustain  the 
action  against  one  will  not  justify  a  discharge  of  the  other 
defendant. 

As  this  point  disposes  of  the  case,  it  is  not  necessary  to 
consider  the  other  errors  assigned. 

Judgment  reversed. 

S,  Whicker,  for  plaintiffs  in  error. 

Hampstead  and  Burt,  for  defendants. 


->  •  »  » -<- 


McCASKY  V.  SCHOOL  DISTRICT  No.  1,  IN  CENTRE 
TOWNSHIP,  CEDAR  COUNTY. 

Where  the  inhabitants  of  a  school  district  levied  a  tax  upon  themselves,  and 
sufficient  had  been  collected  for  the  purpose  of  paying  a  teacher  a  balance, 
his  due,  for  which  he  had  an  order  on  the  treasurer,  and  the  officers  of 
the  district  refused  to  pay  the  order  after  a  proper  demand  ;  it  was  held 
that  the  teacher  might  recover,  in  an  action  upon  the  order,  against  the 
district. 

Error  to  Cedar  District  Court. 

Opinion  by  Williams,  C.  J.  McCasky,  the  plaintiff 
below,  sued  school  district  No.  one  (1)  of  Centre  township, 
Cedar  county.  He  commenced  his  action  before  a  justice 
of  the  peace  in  assumpsit,  on  the  following  order  : 

ii-^     ■\c,      '  "  Tipton,  Cedar  County,  Iowa, 

March  10,  1847. 

"  The  assessor  of  school  district  No.  1,  of  the  township 
of  Centre,  in  the  county  of  Cedar,  and  state  of  Iowa,  will 
pay  Reuben  McCasky,  or  order,  the  sum  of  $25  for  ser- 
vices as  school  teacher  in  said  district,  being  the  balance 
^ue  him  this  day  on  settlement,  out  of  any  funds  in  the 
treasury  not  otherwise  ajipropriated. 

"  Wm.  H.  Tuthill,   . 
]!iIoderator  of  said  district. 
**  Attest:  J.  G.  GiLLiTT,  Director." 


IOWA  CITY,  JUNE,  ISoO.  483 

McCasky  v.  School  District  No.  1,  &c. 

On  the  16tli  of  March,  1850,  the  cause  was  tried  by  a 
justice  of  the  peace,  and  judgment  rendered  for  the  plain-  • 
tiff  for  $25,  and  costs.  An  appeal  was  taken  by  the 
defendant  at  the  April  term  of  the  district  court  for 
Cedar  county.  The  cause  was  tried  on  the  appeal,  and  a 
verdict  and  judgment  obtained  for  the  defendant,  with 
costs  of  suit.  It  appears  by  the  bill  of  exceptions  that 
on  the  trial  in  the  district  court  the  following  facts  were 
proven :  "  That  the  directors  of  the  school  district  in 
October.  1846,  contracted  with  the  plaintiff  to  teach  a 
district  school  in  said  district.  That  he  did  teach,  and 
after  fulfilling  the  contract,  he  settled  with  the  directors, 
and  received  from  them  thereon  $35,  being  the  amount 
of  money  belonging  to  said  district  for  that  year,  leaving 
a  balance  due  to  him  of  $25.  That  the  defendants  issued 
then-  order  on  the  assessor  of  the  district  for  the  balance 
of  $25,  being  the  same  of  which  a  copy  is  above  given. 
That  the  inhabitants  of  the  district  levied  a  tax  to  pay 
the  indebtedness  of  the  district  to  the  plaintiff,  for  which 
the  order  was  given.  That  plaintiff  had  demanded  the 
money  called  for  by  the  order  of  the  proper  officer  of  the 
district.  That  payment  had  been  refused  out  of  a  tax 
raised  as  a  fund  in  1849,  on  the  ground  that  there  was  no 
money  in  the  treasury  at  the  time,  notwithstanding  more 
than  sufficient  had  been  in  the  hands  of  the  officers  of 
the  district  from  time  to  time  to  pay  the  plaintiffs  order, 
and  paid  to  the  treasurer  from  the  assessment  of  the  tax 
laid  in  the  district."  These  facts  being  in  evidence,  the 
counsel  for  the  plaintiff  asked  the  court  to  charge  the 
jury  :  "  That  if  the  jury  believe  that  the  inhabitants  of 
the  district  levied  a  tax  upon  themselves  for  the  purpose 
of  paying  the  claim  on  which  this  suit  is  brought,  and  a 
tax  sufficient  was  collected,  and  in  the  hands  of  the  trea- 
sm-er,  or  the  proper  officer,  arising  from  said  assessment, 
and  the  officers  of  the  district  refused  to  pay  it  over  or 
liquidate  this  claim,  that  the  said  plaintiff  can  recover  in 
this  action,  provided  he  has  made  the  proj)er  demand,  and 
payment   was   refused."     This   instruction  was  refused. 


484  SUPREME  COURT  CASES, 

McCasky  v.  School  District  No.  1,  &c. 

Before  the  cause  was  finally  submitted  to  the  jury,  the 
judge  gave  general  instruction  as  follows  :  "  If  the  jury 
believe  from  the  evidence  that  McCasky  was  employed 
under  the  act  of  1846,  and  that  he  was  paid  by  the  officers 
all  of  the  teachers'  fund  which  was  in  the  treasury  for 
that  year,  and  that  this  order  was  given  to  McCasky  for 
the  balance,  the  law  requires  this  balance  of  McCasky  to 
be  paid  thus  :  the  deficit  is  to  be  assessed  upon  the  parents 
or  guardians  of  the  children  in  proportion  to  the  length 
of  time  they  shall  have  severally  attended  school  during 
the  term  when  such  deficiency  arose  ;  and  before  McCasky 
can  maintain  a  suit  of  any  kind  on  this  order,  the  money 
must  have  been  collected,  and  paid  by  the  collector  into 
the  school  district  treasury.  There  is  no  other  law  than 
the  act  of  1846  which  provides  for  the  payment  of  this 
teacher's  salary,  and  it  matters  not  if  other  moneys  have 
been  collected  and  expended  in  the  school  district,  in  pur- 
suance of  other  acts  of  the  legislature  ;  they  do  not  affect 
the  case  of  the  plaintiff,  and  he  cannot  recover  except 
under  the  act  of  1846." 

The  law  and  the  facts  upon  which  the  judgment  of  the 
district  court  is  founded,  being  here  presented,  we  will 
now  proceed  to  consider  them  in  order  to  final  adjudica- 
tion of  the  points  raised. 

The  contract  sued  on  is  valid,  having  been  made  by  the 
officers  of  the  school  district  witli  McCasky,  by  authority 
of  law,  on  the  10th  of  March,  1847.  The  services  for  the 
payment  of  which  the  order  was  given,  had  been  rendered 
to  the  district  by  McCasky,  between  the  month  of  October, 
1846,  and  the  time  of  the  date  of  the  order,  March 
10,  1847.  The  fund  for  that  year  lacked  $25  of  being 
sufficient  to  pay  plaintiff's  demand  for  teaching.  For 
this  the  order  was  drawn  on  the  treasury.  On  the  2d 
day  of  June,  1849,  there  was  a  school  district  meeting 
legally  called,  and  held  for  the  purpose  of  voting  a 
tax  to  pay  the  debt  due  to  McCasky  and  another.  The 
tax  Avas  voted,  raised,  and  paid  into  the  district  treasury. 
Here,  then,  the  fact  is  established  of  record  in  the  case, 


IOWA  CITY,  JUNE,  1850.  485 

McCasky  v.  School  District  No.  1,  &c. 

that  the  school  district  in  1849  was  legally  in  possession 
of  the  fund  specially  raised  by  the  parents  or  guardians  of 
the  children,  or  the  legal  voters  of  the  district,  to  pay  the 
amount  of  McCasky's  order,  which  had  been  previously 
given ;  payment  of  which  had  been  demanded.  The  whole 
transaction  seems  to  have  been  conducted  by  the  school 
district  officers  as  such,  in  reference  to  the  provision  of 
the  statute,  which  is  as  follows :  "  Section  5.  That  when- 
ever the  amount  of  money  received  by  any  school  district, 
from  the  fund  created  by  this  act,  shall  be  insufficient  to 
pay  for  the  services  of  the  teacher,  the  deficit  shall  be 
assessed  upon  the  parents  or  guardians  of  the  children, 
in  proportion  to  the  length  of  time  they  shall,  severally, 
have  attended  school  during  the  term  when  such  deficiency 
shall  have  arisen."     Laws  of  1846. 

The  eighth  section  of  this  act  expressly  repeals  the 
third  article  of  the  eighteenth  section  of  the  act  of  1840. 
The  repealed  section  is  different  from  that  in  force,  only  in 
this,  that  the  former  relates  to  "  the  money  voted  together 
with  the  apportionment,''^  and  the  latter,  "  to  the  amount 
of  money  received  by  any  school  district.''''  Otherwise  they 
are  substantially  the  same.  So  far,  then,  as  the  school 
district  officers  acted  in  the  matter,  we  find  nothing  to 
have  been  done  by  them  which  was  not  in  substantial 
conformity  with  the  provisions  of  the  act  of  1846 ;  and  the 
final  and  general  instruction  of  the  jndge,  so  far  as  it 
applies  to  the  case  as  affected  by  the  statute,  is  well  enough. 
But  it  was  error  to  refuse  to  give  the  instruction  asked  for 
by  the  plaintiff's  counsel,  as  above  stated.  This  special 
instruction  should  have  been  given.  By  the  giving  of 
the  order,  the  raising  and  reception  of  the  tax  fund  for  the 
special  purpose  of  paying  McCasky,  the  school  district 
officers  acted  within  their  proper  sphere,  so  as  to  establish 
a  liability  on  the  part  of  the  district  to  appropriate  the 
fund  for  the  purpose  intended,  which  was  to  pay  the 
amount  due  to  McCasky  on  the  order.  It  was  the  duty 
of  the  district  under  the  provisions  of  the  law,  to  provide 
the  fund  necessary  to  pay  the  teacher  for  services  rendered 


486  SUPREME  COURT  CASES, 

Harlan  v.  Moriarty. 

in  virtue  of  the  contract  made  with  him,  bj  its  proper 
officers.  They  were  the  persons  on  whom  rested  the  re- 
sponsibility of  judging  of  the  time  for  which  the  teacher 
should  be  employed,  and  of  the  sufficiency  of  the  fund  to 
pay  him  for  his  services.  We  cannot  see  why  the  district 
should  be  released  from  the  contract  thus  made  by  its 
officers,  when  the  benefit  thereof  had  been  received  by  it, 
and  the  whole  matter  fully  recognized  by  the  parties,  as 
honajide  and  official.  A  different  view  of  this  case,  we 
think,  would  work  great  mischief,  and  thwart  the  intention 
( f  the  law,  by  enabling  the  school  district  officers  to  neglect 
or  decline  carrying  out  its  provisions  in  reference  to  the 
procurement  of  the  means  to  pay  teachers,  who  might 
render  like  service,  confiding  in  such  officers  for  the 
faithful  performance  of  their  duty  in  accordance  with 
their  contract. 

Judgment  reversed. 

John  P,  Cook,  for  plaintiff  in  error. 

S.  A.  JBissellf  for  defendant. 


HARLAN'  V.  MORIARTY. 

C.  was  garnisheed  in  an  attachment  suit  against  M.,  and  in  his  answer  it 
appeared  that  he  had  collected  funds  belonging  equally  to  B.  and  M.  ;  that 
both  of  them  claimed  the  whole  amount,  but  as  they  had  assigned  the 
claim  to  him,  and  he  believed  the  assignment  vested  in  him  the  money, 
he  divided  the  amount  equally  in  two  packages,  placing  each  by  itself  ; 
that  he  had  paid  to  B.  his  half,  who  at  the  same  time  demanded  the  other 
half,  which  he  held  subject  to  the  order  of  M.  Held  that  the  funds  re- 
maining in  C.'s  hands  were  subject  to  the  payment  of  M.'s  debta. 

Errob  to  Johnson  District  Court. 

Opinion  hy  Kinney,  J.  The  plaintiff  in  (^vror  sued 
Moriarty  by  attachment  before  a  justice  of  the  peace,  and 
garnisheed  John  M.  Coleman.     Coleman  in  reply  to  the 


IOWA  CITY,  JUNE,  1850.  487 

Harlan  v.  Moriarty. 

interrogatory,  whether  he  had  any  money  or  property  in 
his  hands  at  the  time  he  was  garnisheed  belonging  to 
Moriarty,  answered,  that  a  certain  claim  of  Ballard  & 
Moriarty  against  the  government  of  the  United  States,  for 
publishing  land  sales  in  the  "  Iowa  Eepublican,"  was  for- 
warded to  the  commissioner  of  the  general  land  office, 
assigned  to  him  by  said  Ballard  &  Moriarty,  amounting 
to  the  sum  of  $144.  The  whole  amount  was  claimed 
by  said  Ballard,  and  also  by  said  Moriarty,  respectively, 
and  believing  the  assignment  to  vest  in  him  the  money, 
he  determined  to  divide  it  equally  between  the  parties, 
after  deducting  $12  which  Moriarty  had  directed  him 
to  pay  one  Eliza  J.  Jones.  That  he  put  up  $72  in  one 
package,  and  $60  in  another,  on  the  evening  of  the  day 
of  service  of  the  said  attachment,  and  offered  the  said 
Ballard  the  $72,  which  he  refused  to  receive  without  the 
whole,  saving  the  $12  for  Mrs  Jones,  which  he  con- 
sented witness  might  retain.  That  on  the  evening  of  the 
same  day  after  the  service  of  the  attachment,  Ballard  con- 
sented to  receive  the  $72,  demanding  at  the  same  time 
the  balance  in  his  hands.  The  balance  witness  states 
to  be  $60,  after  deducting  the  $12  as  aforesaid.  That 
in  the  letter  to  him  from  Moriarty,  he  directed  him  to 
pay  in  addition  to  the  $12,  $10  to  Gen.  Morris,  and 
forward  the  balance. 

Upon  this  testimony,  the  justice  rendered  a  judgment 
in  favor  of  Harlan  for  the  sum  of  $16.66f  against  the 
said  Coleman,  as  garnishee,  as  part  and  parcel  of  the 
said  sum  of  $60,  and  ordered  that  the  same  be  credited 
on  the  judgment  of  James  Harlan  against  Peter  Moriarty — 
the  balance  of  $60  having  been  applied  on  the  judgment 
of  James  Robinson  v.  Peter  Moriarty. 

From  this  judgment  Coleman  appealed  to  the  district 
court. 

A  motion  was  made  and  sustained  in  the  district  court, 
to  dismiss  the  garnishment,  and  aa  order  entered  dia- 
charging  the  garnishee  and  requiring  the  money  paid  over 
by  said  Coleman,  in  the  hands  of  the  clerk,  to  be  returned 


488  SUPREME  COURT  CASES, 

Harlan  v.  Moriarty. 

to  him.  Whereupon  Harlan  sued  out  a  writ  of  error,  and 
assigns  for  error  this  decision  of  the  court. 

We  believe  this  assignment  to  be  well  made.  By  the 
decision  of  the  court  discharging  the  garnishee  and  re- 
funding to  him  the  money,  the  court  has  evidently  treated 
the  assignment  of  Ballard  &  Moriarty  as  made  for  the  ustj 
and  benefit  of  said  Coleman,  and  the  money  collected  upon 
it  as  legally  belonging  to  him,  whereby  Coleman,  as  is 
evidently  disclosed  by  his  testimony,  did  not  so  consider 
it.  He  was  willing  to  divide  the  money  equally  between 
the  parties,  to  pay  Moriarty's  orders  out  of  the  amount 
belonging  to  him,  and  did  pay  over  to  Ballard  $72,  being 
half  of  the  money,  on  \\\e,  day  of  the  service  of  the  attach- 
ment. The  money  was  divided  and  put  into  separate  pack- 
ages, and  it  is  highly  probable  from  his  statements,  if  he 
had  not  been  garnisheed,  the  portion  belonging  to  Moriarty 
would,  in  pursuance  of  his  orders,  have  been  forwarded 
to  him.  We  can  come  to  no  other  conclusion  from  the 
testimony  of  Coleman,  than  that  the  assignment  was 
merely  to  enable  him  to  collect  the  money,  and  that  in 
80  doing  he  was  acting  as  the  trustee  of  Ballard  &  Moriarty, 
and  that  the  funds,  when  collected,  belonged  to  both  in 
equal  proportions. 

But  the  argument  assumed  in  this  court  by  the  counsel 
for  the  defendant  in  error  is,  that  the  money  in  the  hands 
of  Coleman,  if  it  does  not  belong  to  him,  is  partnership 
money  belonging  to  Ballard  &  Moriarty,  and  not  liable  to 
attachment  or  garnishment.  That  the  interest  of  Moriarty 
in  the  partnership  fund  could  alone  be  attached.  The 
rule  is  well  settled,  that  when  two  or  more  individuals 
own  an  undivided  interest  in  j)roperty,  and  attachment 
or  execution  issue  against  one  of  them,  the  interest  of  the 
debtor  in  the  property,  and  not  the  specific  article,  can 
alone  be  seized  and  sold.  The  necessity  of  this  rule  is, 
1st,  The  legal  indivisibility  of  many  kinds  of  property; 
and  2d,  The  hardship  and  injustice  to  the  co-owner  of 
an  absolute  severance  of  the  interest  without  his  con- 
gent. 


IOWA  CITY,  JUNE,  1850.  489 


Harlan  v.  Moriarty. 


But  under  our  statute,  in  case  of  garnisheeing  or  attach- 
ing money  in  the  hands  of  a  third  person,  susceptible  as  it 
is  of  a  perfect  division,  the  reason  and  necessity  of  the  rule 
ceases,  and  although  another  person  may  own  a  portion 
of  the  money,  we  know  of  no  reason  why  the  money  itself 
helonging  to  the  debtor  is  not  as  much  the  subject  of  gar- 
nishment as  the  interest  which  the  debtor  may  have  in  it, 
and  especially  when  that  interest  is  clearly  defined  and 
made  known  by  dollars  and  cents. 

In  tliis  case  Moriarty  had  not  an  undefined  and  inde- 
finite interest  in  the  funds  in  Coleman's  hands.  He  was 
entitled,  from  the  testimony  of  the  garnishee,  to  $60, 
or  nothing.  The  money  had  been  divided,  and  Ballard 
had  received  his  proportion,  and  the  residue  Coleman 
treated  as  Moriarty' s.  There  is  no  evidence  to  show  that 
Ballard  was  entitled  to  more  than  he  obtained,  neither  is 
it  contended  that  the  division  did  not  mete  out  ample 
justice  to  the  parties.  The  contest  for  this  money  is  not 
between  Ballard  and  Moriarty,  but  between  Coleman  and 
Moriarty  (or  Moriarty's  creditor).  If  the  money  belonged 
to  Moriarty,  an. I  was  so  set  apart  by  Coleman,  as  is  con- 
clusive from  his  testimony  to  have  been  the  case,  it  was 
liable  under  the  statute  while  in  Coleman's  hands  to  the 
payment  of  Moriarty's  debts,  and  Coleman  could  no  more 
resist  the  demands  of  the  law  upon  it  than  the  demand  of 
Moriarty  himself.  As  the  case  is  presented  to  us,  we 
think  the  court  erred  in  dismissing  the  garnishment,  and 
ordering  the  money  to  be  refunded  to  Coleman. 

Judgment  reversed. 

C.  Bates  J  for  plaintiff  in  error. 

W,  Penn,  Clark^  for  defendant. 


Vol.  II.  82 


490  SUPREME  COURT  CASES, 

Lucas  V.  Snyder. 


LUCAS  V.  SNYDER. 

An  agreement  stipulated  that  the  defendant  should  build  a  house  in  a  certain 
manner,  and  have  it  completed  on  or  before  the  1st  day  of  March,  1S45, 
for  which  the  plaintiff  paid  $400  down,  and  was  to  pay  $600  on  the  said 
1st  day  of  March.  In  an  action  on  the  at^reement  for  failing  to  complete 
the  house  within  the  time  and  in  the  manner  specified,  the  declaration 
averred  that  the  plaintiff  was  ready  and  prepared  to  pay  according  to  the 
effect  of  the  agreement.  Held  that  the  declaration  was  good  without 
alleging  the  payment,  or  an  offer  to  pay  the 


Error  to  Muscatine  District  Court. 

Opinion  hj  Greene,  J.  This  was  an  action  of  debt 
commenced  by  the  plaintiff  in  error  against  Thomas 
Snyder  in  the  district  court  of  Johnson  county.  Venue 
changed  to  Muscatine  county.  Demurrer  to  the  declara- 
tion sustained,  and  judgment  rendered  for  the  defendant. 
The  question  now  raised  is,  Did  the  court  err  in  declaring 
the  declaration  to  be  insufficient?  The  declaration  was 
framed  upon  an  article  of  agreement,  by  which  Snyder 
undertook  to  furnish  materials,  and  construct  for  Lucas  a 
good  and  substantial  brick  house  according  to  stipulated 
plans  and  specifications,  upon  a  piece  of  land  adjoining 
Iowa  city  to  be  pointed  out  by  Lucas ;  and  it  was  stipu- 
lated that  the  building  should  be  completed  on  or  be- 
fore the  1st  of  March,  1845.  Snyder  bound  himself  to  a 
true  performance  of  the  agreement  in  the  penal  sum  of 
$1000. 

As  preliminary  to  the  foregoing  stipulations,  the  agree- 
ment witnessed  that  Lucas  should  pay  to  Snyder  $400  at 
the  signing  of  the  articles,  "and  $600  on  or  before  the 
Lst  day  of  March,  1845,  and  for  the  true  payment  of 
which  he  binds  himself,  and  assigns  firmly  by  these  pre- 
sents." 

The  declaration  avers  that  Lucas  performed  the  con- 
ditions of  the  agreement  on  his  part  by  paying  the  $400 
at  the  signing  of  the  agreement ;  by  designating  the  piece 


IOWA  CITY,  JUNE,  1850.  491 

Lucas  V.  Snyder, 

of  land  upon  which  the  house  was  to  be  built ;  and  by 
being  ready  and  prepared  to  pay  the  $600  on  the  1st  day 
of  March,  according  to  the  tenor  of  the  agreement.  The 
declaration  then  sets  forth  several  jjarticulars  in  which 
Snyder  failed  to  have  the  house  completed  by  the  1st  day 
of  March  as  stipulated  in  the  contract,  and  claims  a  for- 
feiture of  the  penal  sum  mentioned  in  the  agreement. 
But  the  declaration  does  not  aver  a  performance,  or  an 
offer  to  perform  by  Lucas  so  far  as  the  payment  of  $600 
is  concerned.  It  merely  alleges  that  he  was  ready  and 
prepared  to  pay  according  to  the  effect  of  the  agreement, 
and  in  this  particular  it  is  contended  that  the  declaration 
was  defective.  This  position  could  not  be  disturbed  if 
that  payment  could  properly  be  regarded  as  a  condition 
precedent  to  the  building  of  the  house,  and  if  the  declara- 
tion did  not  show  that  the  j)laintiff  had  given  the  defend- 
ant notice  of  his  readiness  to  perform.  According  to  our 
view  of  the  situation  and  true  intention  of  the  parties  as 
disclosed  in  the  agreement,  the  declaration  avers  perform- 
ance of  all  those  conditions  on  the  part  of  the  plaintiff 
which  can  be  regarded  as  precedent,  and  that  Snyder's 
covenant  to  complete  the  house  on  or  before  the  1st  day  of 
March,  1845,  does  not  rest  or  in  any  way  depend  upon  the 
covenant  of  Lucas  to  pay  the  $600.  We  regard  them  as 
mutual  and  independent  covenants.  The  nature  of  the 
two  covenants,  the  order  of  time  in  which  the  work  was 
to  be  performed,  and  the  payment  made,  shows  conclu- 
sively that  the  former  had  to  be  in  process  of  execution, 
and  finally  completed  before  the  day  of  payment,  and 
consequently,  as  the  acts  could  not  be  simultaneously  per- 
formed, it  could  not  partake  of  that  characteristic  of 
dependent  covenants.  The  doctrine  is  well  settled,  that 
where  an  act  is  to  be  done  by  one  party  before  the  con- 
sideration act  is  to  be  done  by  the  other,  the  covenants  to 
do  those  acts  are  independent.  Tileston  v.  Newell,  13 
Mass.,  410;  Conch  v.  In^ersoll,  2  Tick.,  300;  Cunning- 
ham V.  Morrell,  10  John.,  203  ;  Goodwin  v.  Holbrook,  4 
Wend..  377  ;   Craddoch  v.  Aldndge,  2  Bibb.,  15. 


492  SUPREME  COURT  CASES, 


Patterson  v.  State  of  Indiana. 


Apply  that  rale  to  the  present  case.  To  enable  the 
defendant  to  perform  the  work  within  the  stipulated  time, 
it  became  nesessary  for  him  to  commence  acting  long  be- 
fore the  day  of  payment,  in  order  to  have  the  work  com- 
pleted on  or  before  that  day,  as  stipulated.  From  the 
nature  and  terms  of  the  contract,  it  cannot  be  claimed  that 
the  defendant  made  the  last  payment  a  condition  precedent 
to  his  liability  to  perform  the  work ;  for  that  payment  was 
not  to  be  made  by  the  plaintijBT  until  the  day  by  or  before 
which  the  defendant  should  completely  perform  his  j)art 
of  the  agreement.  His  failure  to  do  so  rendered  him 
liable  on  the  agreement  even  before  a  breach  of  the  plain- 
tiff's covenant  to  pay  could  occur.  How  then  could  the 
performance  of  the  work  be  in  any  way  dependent  upon 
the  payment  ? 

There  is  another  very  good  reason  why  those  covenants 
should  not  be  regarded  as  dependent.  It  appears  to  be  a 
rule  of  law  that  a  covenant  with  a  penalty  annexed  will 
always  be  considered  as  independent.  Freelandw.  Mitchell, 
8  Mis.,  487. 

We  therefore  conclude  that  the  covenant  upon  which 
this  suit  was  commenced  is  independent,  and  that  the 
declaration  is  sufficient. 

Judgment  reversed. 

W.  P.  Clark  and  H.  D.  Downey y  for  plaintiff  in  error. 

S,  Whicker  and  J,  D,  Templin,  for  defendant. 


PATTERSON"  et  al.  v.  STATE  OF  INDIANA. 

Where  a  power  of  attorney  authorizes  a  judgment  to  be  confessed  for  "an 
amount  that  may  l)e  found  due  "  on  the  note  therein  described,  and  is  in 


IOWA  CITY,  JUNE,  1850.  493 

Patterson  v.  State  of  Indiana. 

BufScient  form  in  all  otlier  particulars  to  give  the  court  jurisdiction  over 
the  subject  matter  and  the  parties,  it  gives  sufficient  authority  to  confess 
a  judgment,  which  cannot  be  collaterally  impeached  for  mere  irregu- 
larity. 

The  judgment  of  a  court,  having  jurisdiction  of  the  parties  and  the  subject 
matter,  is  conclusive  so  long  as  it  remains  unreversed. 

A  sherifi"'s  return  may  be  so  amended  as  to  set  forth  truthfully  the  facts  of 
the  service. 


Error  to  Muscatine  District  Court. 

Opinion  by  Williams,  C.  J.  This  is  an  action  com- 
menced in  the  district  court  of  Johnson  county.  The 
venue  was  changed  to  the  county  of  Muscatine,  in  the 
second  judicial  district  of  Iowa. 

The  plaintiff  sued  in  deht  on  the  record  of  a  judgment, 
certified  from  the  circuit  court  of  Fountain  county,  in  the 
state  of  Indiana,  obtained  at  the  September  term  of  said 
court,  on  the  10th  day  of  October,  1844.  The  judgment, 
as  certified,  is  for  the  sum  of  $689.56  debt,  and  the 
fm-ther  sum  of  |74  interest,  and  also  15  per  cent, 
damages  on  the  amount  of  the  note,  on  which  judgment 
was  rendered,  amounting  to  $103.43:  making  in  all  the 
sum  of  $886.99,  with  95  cents  costs  of  suit. 

The  certified  copy  of  the  record  of  the  proceedings 
had  in  the  circuit  court  of  Fountain  county,  Indiana, 
shows  that  the  action  was  there  instituted  by  the  plaintifi", 
by  filing  of  record  the  following  note  of  the  defendants, 
viz. : 

"  $689.56.  Twelve  months  after  date  we,  or  either 
of  us,  promise  to  pay  David  Brier,  as  seminary  trustee 
for  Fountain  county,  Indiana,  or  his  successor  in  office, 
the  sum  of  six  hundred  and  eighty-nine  dollars  and  fifty- 
six  cents,  with  seven  per  cent,  interest,  from  date  until 
March  23,  1843."  This  note  is  signed  by  the  defendants, 
Patterson  and  Carleton,  and  sealed  with  their  seals.  At  the 
same  time,  as  appears  by  the  record,  David  Brier,  their 
attorney  in  fact,  appeared  in  open  court,  and  proved  the 
execution  of  a  warrant  of  attorney  from  said  defendants. 


494  SUPHEME  COURT  CASES, 


Patterson  v.  State  of  Indiana. 


dated  the  5tli  of  August,  1844,  at  Johnson  county,  Iowa, 
authorizing  and  empowering  him,  or  any  other  attorney 
at  law  in  the  state  of  Indiana,  to  apjDear  for  them  in  the 
circuit  court  of  Fountain  county,  Indiana,  at  the  next 
September  term,  or  any  other  term  of  said  court,  and  waive 
the  issuing  and  service  of  process,  and  enter  his  appear- 
ance, and  waive  a  declaration  in  debt  in  favor  of  the  state 
of  Indiana,  for  the  use  and  benefit  of  the  seminary  fund  of 
the  county  of  Fountain,  and  confess  said  action  for  such 
sum  as  shall  appear  at  the  time  of  confessing  judgment 
to  be  due  upon  a  promissory  note  given  by  us  in  the 
words  and  figures  following,  to  wit."  The  note,  as  above 
stated,  is  here  inserted  in  the  power  of  attorney,  which 
concludes  as  follows:  "And  to  permit  a  judgment  to  be 
then  and  there  entered  against  us  for  such  sum,  and  for 
the  damages  and  costs  chargeable  thereon :  and  we  hereby 
release  all  errors  which  may  in  any  manner  happen  in 
any  part  of  the  proceedings  in  said  action,  and  to  waive 
all  right  and  benefit  of  appeal  ;  and  for  what  said 
attorney  shall  do  in  the  premises,  this  shall  be  a  sufficient 
warrant."  Judgment  was  thereupon  confessed,  and  entered 
by  the  court  for  the  aforesaid  sum,  as  debt,  interest  and 
damages. 

When  this  cause  was  removed  to  Muscatine  county,  at 
the  May  term  of  the  district  court,  the  defendants  moved 
to  dismiss  the  suit  for  the  reason  that  summons  had  not 
been  served.  Whereupon,  on  motion  of  the  plaintiff,  the 
return  of  the  sheriff  who  had  served  it  was  amended  by 
leave  of  the  com-t,  which  answered  and  obviated  the  ob- 
jection to  the  service.  The  defendants  then  craved  o^er 
of  the  record,  on  the  plaintiff's  declaration  mentioned. 
Thereupon  a  demurrer  was  filed. 

The  demurrer  was  overruled.  Judgment  for  the  debt, 
interest,  damages  and  costs  was  then  entered  for  the 
plaintiff. 

The  defendants  set  forth  three  causes  of  demurrer  : 

"  1st  5  The  power  of  attorney  in  said  record  contained, 


IOWA  CITY,  JUNE,  1850.  495 

Patterson  v.  State  of  Indiana. 

and  by  virtue  of  whicli  said  judgment  was  rendered,  is, 
and  was,  void  for  uncertainty. 

"  2d,  The  said  judgment  is  rendered  for  damages  not 
warranted  by  the  power  of  attorney. 

"  3d,  The  said  judgment  is  rendered  for  a  sum  not  war- 
ranted by  the  power  of  attorney,  and  is  illegal  and  void." 

These  are  the  points  made  by  the  defendants  on  tlie 
demurrer  in  the  court  below,  upon  which  the  ruling  of  that 
court  was  had,  and  of  which  they  now  complain. 

Vie  find  no  error  in  the  judgment  of  the  court  below. 
The  defendants,  by  their  power  of  attorney  duly  executed, 
acknowledged  the  indebtedness,  and  empowered  David 
Brier,  an  attorney  at  law  of  the  state  of  Indiana,  to  appear 
for  them  in  the  circuit  court  of  Fountain  county,  in  that 
state,  at  the  September  term  thereof,  or  any  other  term, 
and  enter  their  appearance,  and  waive  a  declaration  in 
debt  in  favor  of  the  state  of  Indiana,  for  the  use  and  benefit 
of  the  seminary  fund  of  the  county  of  Fountain,  and 
confess  said  action  for  such  sum  as  should  appear  at  the 
time  of  confessing  judgment  to  be  due  upon  a  promissory 
note  given  by  them.  The  note  and  the  power  of  attorney, 
as  of  record,  show  the  authority  which,  by  the  voluntary 
act  of  the  defendants,  was  given  to  the  attorney.  The 
judgment  was  confessed  by  him  in  accordance  therewith, 
under  the  supervision  of  the  court.  By  the  power  which 
authorized  the  appearance  by  attorney,  and  which  was 
duly  proved  before  the  confession,  the  court  had  jurisdic- 
tion of  the  persons  of  the  defendants ;  the  subject  matter 
was  also  such  that  it  was  clearly  within  the  jurisdiction 
of  the  court  by  which  the  judgment  was  rendered. 

The  power,  therefore,  to  act  in  the  matter  is  indisput- 
able ;  as  the  circuit  court  of  Fountain  county,  Indiana,  is 
possessed  of  general  jurisdiction,  the  case  was  there  pro- 
perly cognizable.  This  being  the  state  of  the  case,  and 
the  record  being  duly  authenticated,  can  the  defendants 
be  permitted  in  this  action  to  go  behind  the  judgment  of 
the  circuit  court  of  Fountain  county,  to  impeach  it  for 
irregularity,  and  set  that  up  as  a  defence  here  ?     We  think 


496  .  SUPREME  COUHT  CASES, 

Patterson  v.  State  of  Indiana. 

tliey  cannot.  If  the  court  had  acted  without  jurisdiction 
of  the  persons  of  the  defendants,  without  their  consent  or 
waiver;  if  it  had  not  jurisdiction  of  the  subject  matter, 
or  if  there  had  been  fraud  in  the  obtaining  of  the  judg- 
ment, then,  in  either  of  these  cases,  the  validity  of  the 
judgment  might  be  impeached  by  proper  pleading^  and 
the  district  court  might  have  inquired  into  and  adjudi- 
cated these  matters.  The  defence  there  preseated  consisted 
of  irregularities  for  which  the  defendants  had,  and  if  true, 
might  have  obtained,  ample  redress  in  the  supreme  court 
of  the  state  where  the  judgment  was  rendered.  This  legal 
mode  of  redress  has  not  been  resorted  to  by  them,  and 
therefore  they  must  be  left  to  the  legitimate  consequences 
of  their  own  laches.  The  judgment  of  a  court  having  juris- 
diction of  the  parties,  and  of  the  subject  matter  of  the 
action,  is  conclusive  between  the  parties  to  the  action,  so 
long  as  it  remains  unreversed.  Warburton  v.  Atkin,  1 
McLean,  460;  La  Grange  Y.Ward,  11  Ohio,  257;  Sm^- 
gart  v.  Harber,  4  Scam.,  364;  Evarts  v.  Gove,  10  Yt.,  161 ; 
Granger  v.  Clark,  9  Shep. ,  1 28 ;  Mitchell  v.  State  Bank, 
1  Scam.,  526;  United  States  Bank  Y.Voorhees,  1  McLean, 
221.  The  principle  upon  which  this  court  decides  the 
case  at  bar  is  clearly  set  forth  in  the  case  of  Cook  v.  Dar- 
ling, 18  Pick.,  393.  It  is  there  decided,  that  "in  an  action 
of  debt  on  a  judgment  of  the  court  of  common  pleas,  the 
judgment  cannot  be  impeached,  or  avoided  as  erroneous 
by  plea,  but  the  remedy  is  by  writ  of  error."  The  reason 
there  assigned  is,  that  "the  judgment  is  of  a  court  of 
common  law  jm'isdiction,  to  which  a  writ  of  error  lies  to 
reverse  it  if  erroneous."  It  would  be  otherwise  if  the 
matter  complained  of  were  such  as  to  be  incorrigible  by  writ 
of  error.  It  will  not  be  contended  here  that  the  matters 
complained  of  could  not  have  been  corrected,  if  true,  by 
resort  to  a  writ  of  error,  as  they  would  be  found  of  record, 
and  appertained  to  the  jurisdiction  of  the  court  by  which 
the  judgment  was  rendered. 

We  think  it  unnecessary  to  discuss  at  length  the  other 
question  presented  by  the  assignment  of  the  plaintiffs  In 


IOWA  CITY,  JUNE,  1850.  497 

Robinson  v.  Moriarty. 

error.  It  is  enough  to  say  that  where  the  return  of  a 
sheriff  aa  to  service  is  imperfectly  indorsed  on  the  Avrit, 
the  court  may  before  trial,  on  motion,  grant  leave  to 
amend  it,  so  as  to  set  forth  therein  ti-uthfully  the  facts  of 
the  service. 

Judgment  affirmed. 

Wm.  G.  Woodward,  for  plaintiffs  in  error. 

G.  Folsom,  for  defendant. 


EOBINSON  V.  MORIARTY. 

Au  attachment  will  hold  all  chattels,  moneys  or  evidences  of  debt,  or  any 

interest  which  the  debtor  maj'  have  in  them. 
Where  C.  had  collected  funds  for  B.  and  M.,  and  paid  to  B.  his  portion,  and 

where  no  creditors  of  B.  and  M.  as  partners  claimed  the  funds  remaining 

in  the  hands  of  C,  it  was  held  that  they  were  liable  for  the  individual 

debts  of  M. 

Error  to  Johnson  District  Court. 

Opinion  by  Kinney,  J.  Robinson  sued  Moriarty  by 
attachment  before  a  justice  of  the  peace,  and  garnisheed 
John  M.  Coleman.  The  facts  in  relation  to  the  money  in 
the  hands  of  the  garnishee  are  the  same  as  in  the  case  of 
Harlan  v.  Coleman*  and  Coleman's  answer  not  mate- 
rially different  from  his  testimony  in  that  case.  The  jus- 
tice rendered  judgment  against  Coleman  as  garnishee, 
and  credited  the  same  upon  the  judgment  in  favor  of 
Robinson  v.  Moriarty.  Coleman  appealed,  and  on  his 
motion  in  the  district  court  the  garnishment  was  dis- 
missed, and  a  like  judgment  entered  as  in  the  case  before 
mentioned.  Robinson  brings  the  case  to  this  court,  rely- 
ing for  a  reversal  upon  the  error  of  the  court  in  sustahiing 
the  motion.     It   is  also  contended    in  this  case  by  the 

♦  Ante, -180. 


498  SUPREME  COURT  CASES, 

Robinson  v.  Moriarty. 

counsel  for  the  defendant  in  error,  that  the  fuilds  in 
Coleman's  hands  were  partnership  funds,  and  consequently 
no  portion  of  them  liable  to  be  taken  by  attachment,  or 
subject  to  be  garnisheed  by  the  creditors  of  Moriarty. 

An  examination  of  the  statute  on  this  subject,  and  a 
proper  application  of  it,  we  think  will  settle  this  question 
beyond  controversy. 

By  the  second  section  of  the  act  regulating  attachments 
before  justices  of  the  peace,  the  justice,  upon  the  proper 
affidavit  being  made,  is  required  to  issue  a  writ  of  attach- 
ment against  the  property  and  effects  of  the  defendant. 
And  in  the  third  part  of  the  fourth  section,  it  is  provided, 
that  when  goods  and  chattels,  money  or  evidences  of  debt 
are  to  be  attached,  the  constable  shall  seize  the  same,  and 
keep  them  in  his  custody,  if  accessible  ;  and  if  not  access- 
ible, he  shall  declare  to  the  person  in  possession  that  he 
attaches  the  same  in  his  possession,  and  summon  such 
person  as  garnishee. 

Under  this  statute  the  proceedings  in  this  case  were 
conducted,  and,  as  far  as  appears  from  the  papers,  the  pro- 
visions of  the  statute  were  strictly  complied  with.  It  is 
only  necessary  to  remark  in  this  case,  in  addition  to  what 
was  said  in  the  case  of  Harlan  v.  Coleman,  that  under 
this  statute,  Coleman,  as  garnishee,  was  obliged  to  disclose 
any  and  all  interest  Moriarty  had  in  the  funds  in  his  hands, 
and  if  that  interest,  when  so  disclosed,  was  susceptible  of 
being  reduced  to  an  amount  certain,  the  specific  sum  would 
be  held  by  the  attachment.  If,  however,  by  the  testimony, 
it  proved  to  be  a  mere  interest^  then  the  interest  alone  was 
held  by  the  attachment,  and  could  have  been  sold  upon 
execution. 

The  writ,  by  virtue  of  the  statute,  would  reach  all  cliat- 
tels,  moneys  or  evidences  of  debt,  and  also  any  interest 
in  either  which  the  debtor  might  have  in  the  hands  of  a 
third  person. 

But  in  this  case,  as  in  the  case  of  Harlan  v.  Colemany 
the  amount  in  the  hands  of  the  garnishee  was  certain  and 
fixed,  and  we  cannot  see,  even  if  Ballard  and  Moriarty 


IOWA  CITY,  JUNE,  1850.  499 

Lucas  V.  Snyder. 

were  partners,  (the  former  having  received  his  proportion,) 
how  that  fact  should  affect  the  remaining  fund,  so  as  to 
protect  it  from  attachment. 

The  fact  of  Ballard  and  Moriarty  being  partners,  and 
the  money  in  Coleman's  hands  partnership  funds,  would 
not  protect  the  amount  belonging  to  Moriarty  from  gar- 
nishment. True,  from  the  great  weight  of  authority,  the 
partnership  creditors  would  in  equity  be  first  entitled  to 
the  payment  of  their  claims  out  of  the  partnership  assets, 
in  |)reference  to  sejjarate  creditors.  But  in  this  case  there 
is  no  evidence  that  there  were  any  such  creditors.  If, 
however,  there  were  such,  they  could  enjoin  the  funds  in 
the  hands  of  Coleman,  and  a  court  of  equity  would,  if  they 
were  partnership  funds,  have  appropriated  them  for  the 
benefit  of  the  creditors.  But  as  no  such  steps  were  taken, 
and  as  there  was  no  interference  on  the  part  of  the  part- 
nership creditors  to  prevent  the  payment  of  the  money  to 
the  separate  creditors  of  Moi'iarty,  we  think  the  court  erred 
in  dismissing  the  proceeding  and  ordering  the  money  to 
be  refunded  to  Coleman.  Judgment  is  therefore  reversed, 
aud  a  trial  de  novo  awarded. 

Judgment  reversed. 


*o' 


(7.  Bates^  for  plaintiff  in  error. 
Wm,  Penn,  Clarkj  for  defendant. 


>  ♦  » ♦  < 


LUCAS  V.  SNYDER. 

When  an  instruction  extends  merely  to  the  legcal  effect  and  meaning  of  an 
instrument,  it  cannot  be  objected  to  as  an  instruction  upon  the  facts  in  the 
case. 

Error  to  Muscatine  District  Court. 

Opinion  hy  GtReene,  J.     This  was  an  action  of  assump- 
sit commenced  before  a  justice  of  the  peace  in  Johnson 


500  SUPREME  COURT  CASES, 

Lucas  V.  Snyder. 

county  by  Thomas  Snyder  against  Robert  Lucas.  Judg- 
ment for  the  plaintiff.  Defendant  took  an  appeal  and 
obtained  judgment  in  district  court.  New  trial  granted; 
venue  changed  from  Johnson  to  Muscatine  district  court, 
and  there  the  plaintiff  obtained  a  verdict  and  judgment 
for  $70. 

The  suit  was  instituted  to  recover  the  value  of  certain 
plastering  done  by  the  plaintiff  in  a  dwelling  house  for  the 
defendant.  This  house  had  been  built  by  Snyder  under 
a  contract  to  finish  the  same  in  complete  order  except  the 
plastering  of  the  upper  story.  The  account  appears  to 
have  been  for  jjlastering  the  upper  story,  which  was  not 
included  in  the  above  contract. 

On  the  trial  Lucas  gave  in  evidence  a  receipt  from 
Snyder  for  "  $500  for  work  done  on  a  house  in  accordance 
with  the  annexed  plan."  The  court  instructed  the  jury 
that  the  "  receipt  does  not,  from  its  terms,  refer  to  such 
plastering  as  was  excluded  from  the  written  contract. 
And  for  this  instruction  it  is  contended  that  the  judgment 
should  be  reversed.  In  support  of  this  position,  it  is 
assumed  that  the  charge  involves  a  question  of  fact  which 
comes  alone  within  the  province  of  the  jury.  But  we  do 
not  consider  it  an  instruction  upon  facts.  It  is  one  of 
construction  only,  involving  the  legal  signification  and 
extent  of  the  receipt.  It  was  therefore  a  subject  upon 
which  the  court  could  with  propriety  charge  the  jury. 

As  the  instruction  extended  merely  to  the  legal  effect 
and  meaning  of  the  instrument  before  the  court,  and  as 
the  other  proceedings  in  this  case  were  substantially  cor- 
rect, the  judgment  below  cannot  be  disturbed. 

Judgment  afifirmed. 
W.  Penn.  Clark,  for  plaintiffs  in  error. 
S.  Whicker  and  J.  D.  Templin^  for  defendant. 


IOWA  CITY,  JUNE,  1850.  601 


Holmes  v.  The  State. 


HOLMES  V.  THE  STATE. 

A  proceeding  against  the  father  for  the  support  of  hia  illegitimate  child  ia 
not  in  the  nature  of  a  criminal  action,  and  therefore,  under  the  constitu- 
tion, the  defendant  is  exempt  from  imprisonment;  and  that  portion  of  tlie 
bastardy  act  which  autiiorized  such  imprisonment  is  repealed  by  the  con- 
stitution. 

Errok  to  Muscatine  District  Court. 

Opinion  hy  Kinney,  J.  Complaint  made  before  a  justice 
of  the  peace  by  Mary  Margaret  Sheely  against  the  plaintiff 
in  error  under  the  act  concerning  bastardy.  Holmes  was 
held  to  bail  in  the  sum  of  $200  for  his  appearance  at  the 
next  term  of  the  district  court,  where,  upon  trial  before  a 
jury,  he  was  found  guilty.  The  court  thereupon  adjudged 
that  he  stand  charged  with  the  maintenance  of  the  child 
in  the  sum  of  50  cents  each  week,  for  the  period  of  two 
years,  from  the  8th  of  October,  1846,  (the  birth  of  the 
child,)  and  after  that  time  that  the  said  Holmes  stand 
charged  with  the  maintenance  of  the  child  in  the  sum  of 
$52  a  year  until  the  child  was  seven  years  of  age ;  and 
among  other  things  it  was  further  ordered  and  decreed 
that  the  said  Holmes  give  security  to  perform  the  order  of 
the  court,  and  in  case  of  neglect  or  refusal  to  give  the 
security  and  pay  the  costs  of  the  prosecution,  that  he  be 
committed  to  the  county  jail,  there  to  remain  until  he 
should  comjjly  with  the  order  of  the  court  therein  made. 
To  reverse  this  judgment  of  the  court  the  defendant  below 
sued  out  a  writ  of  error,  and  assigns  for  error :  That  the 
court  erred  in  ordering  that  the  said  John  Holmes  be  com- 
mitted to  the  jail  of  the  county  in  default  of  his  paying 
the  costs  and  giving  security  for  the  performance  of  the 
order  of  the  court. 

The  statute  under  which  this  proceeding  was  instituted 
provides,  that  in  case  the  reputed  father  shall  fail  or  neglect 
to  give  the  security  required  by  the  court,  and  pay  the 


502  SUPREME  COURT  CASES, 


Holmes  v.  The  State. 


costs  of  prosecution,  he  shall  be  committed  to  the  jail  of 
the  proper  county,  there  to  remain  until  he  shall  comply 
Avith  the  order  of  the  court,  or  until  such  court  shall,  on 
sufficient  cause  shown,  direct  him  to  be  discharged.  Rev. 
Stat.,  p.  200,  §  5. 

By  the  constitution  adopted  since  the  act  passed  to  pro- 
vide for  the  support  of  illegitimate  children,  it  is  provided, 
that  "  no  person  shall  be  imprisoned  for  any  debt  in  any 
civil  action  on  mense,  or  final  process,  unless  in  case  of 
fraud,  and  no  person  shall  be  imprisoned  for  a  militia  fine 
in  time  of  peace."  Art.  2,  §  9.  As  this  article  in  the 
constitution  abolishes  imprisonment  for  debt  in  all  civil 
actions,  (except  in  cases  of  fraud,)  it  becomes  important  to 
ascertain  and  determine  whether  a  prosecution  under  the 
bastardy  act  is  a  civil  or  criminal  proceeding.  In  many 
respects  the  forms  used  in  the  suit  are  very  much  assimi- 
lated to  those  adopted  in  criminal  cases.  Complaint 
against  the  putative  father  is  made  before  a  justice  of  the 
peace,  a  warrant  is  the  process  used,  running  in  the  name 
of  the  state,  by  which  the  accused  is  arrested  and  brought 
before  the  magistrate,  and  in  case  it  appears  that  he  is  the 
father  of  the  child,  and  if  he  does  not  pay  the  complainant 
such  sum  as  she  may  agree  to  receive,  &c.,  he  is  required 
to  enter  into  recognizance  for  his  appearance  at  the  next 
term  of  the  district  court.  Thus  the  way  and  manner 
pointed  out  by  the  statute  for  the  complainant  to  bring 
her  suit  for  the  support  of  the  child,  resembles  in  many 
respects  proceedings  in  criminal  cases.  Still  the  charge 
of  bastardy  against  the  defendant  in  itself  is  in  no  sense 
of  a  criminal  nature.  The  defendant  has  not  violated 
any  criminal  or  penal  statute,  nor  was  the  connection 
which  produced  the  illegitimate  offspring  forbidden  by 
law.  He  could  not  have  been  indicted,  nor  in  any.  man- 
ner convicted  or  punished  as  a  public  offender.  The 
statute  has  provided  for  the  punishment  for  rape,  fornica- 
tion, and  adultery,  but  neither  of  these  need  be  resorted 
to  for  the  purpose  of  begetting  a  bastard  child,  and  not 
€ven  seduction,  as  the  right  of  action  is  complete  when  the 


IOWA  CITY,  JUNE,  1850.  503 

Holmes  v.  The  State. 

intercourse  is  by  mutual  consent  of  the  parties,  and  a  child 
the  result  of  such  immorality.  A  natural  as  well  as  a  civil 
liability  attaches  to  the  father  to  support  his  own  offspring, 
however  much  the  mother  may  have  been  the  cause  of 
inducing  the  act  which  brings  into  the  world  a  bastard 
child. 

The  complaint  and  proceedings  are  of  a  summary  nature 
to  secure  to  the  woman  (who  is  in  such  cases  favored  by 
the  law)  a  speedy  remedy  for  the  support  of  her  infant 
child.  She  is  permitted  to  use  the  name  of  the  state  to 
have  comjjulsory  process,  and  thus  she  can  obtain  a  judg- 
ment without  that  delay  attending  civil  suits  in  the  usual 
form.  In  this  way  she  is  saved  much  trouble  and  incon- 
venience. Immediate  means  can  be  obtained  for  the  sujd- 
port  of  the  child,  and  the  door  of  escape  to  some  extent 
closed  upon  the  defendant,  whereby  he  is  prevented  from 
avoiding  those  legal  and  moral  obligations  which  men 
under  such  circumstances  are  very  reluctant  to  observe. 

For  the  purpose  of  affording  a  prompt  remedy  this 
statute  was  passed.  But  while  the  statute  gives  the  right 
to  a  speedy  action,  and  the  woman  is  permitted  to  bring 
to  her  assistance  the  forms  of  criminal  law,  still  the  suit 
thus  allowed  to  be  instituted  is  a  civil  suit,  to  inure  to  the 
benefit  of  herself  and  child. 

The  mother  may  dismiss  the  prosecution,  settle  the 
matter,  and  release  the  defendant  if  she  chooses,  or  if  judg- 
ment is  obtained,  receipt  it  in  full,  and  the  state  cannot 
interfere  or  prevent  it.  The  object  and  purposes  of  the 
complaint  are  to  obtain  from  the  putative  father  an 
amount  sufficient  to  maintain  the  child,  and  not  to  punish 
him  criminally  for  the  carnal  intercourse. 

The  judgment  of  the  court  ordering  the  accused  into 
confinement  until  he  should  comply  with  its  conditions  is 
not  the  infliction  of  punishment  for  a  criminal  offence,  or 
for  anything  which  he  has  done,  but  rather  as  a  punish- 
ment for  not  complying  with  the  requirements  of  the  law, 
and  the  judgment  of  the  court. 

With  the  excejjtion  of  the  decisions  of  two  states  with 


504  SUPREME  COURT  CASES. 

Holmes  v.  The  State. 

peculiar  statutes  in  relation  to  bastardy,  we  cannot  find  a 
case  where  proceedings  in  bastardy  are  decided  to  be 
strictly  criminal  proceedings.  In  Pennsylvania  the  pro- 
secution is  by  indictment.  Commonwealth  v.  Pintard,  1 
Browne,  69. 

In  Massachusetts  and  Vermont  the  prosecution  is  held 
to  partake  of  the  nature  of  both  a  civil  and  criminal 
suit.  Hill  V.  Wells,  6  Pick.,  104  ;  Rubie  v.  McNiece,  7 
ib.,  419.  But  in  many  of  the  states  with  statutes  similar 
to  our  own,  where  the  defendant  is  arrested,  pleads  not 
guilty,  is  bound  over  to  court,  and  can  be  committed  to 
jail  in  failing  to  comply  with  the  orders  of  the  court,  a 
suit  in  bastardy  has  been  held  a  civil  suit.  Harman  v. 
Taylor,  2  Conn.,  357;  Sckaler  v.  Commonwealth,  6  Litt., 
89;  Martson  v.  Jennings,  1  N.  H.,  156;  Monroe  v.  Dyer, 
2  Greenl.,  165;  Seintland  v.  The  Commonwealth,  6  J.  T. 
Marshall,  585;    Walker  v.  The  State,  6  Black.,  1. 

In  the  case  in  11  N.  H. ,  with  a  statute  much  like  ours, 
the  cornet  say :  "  It  is  evident,  we  think,  from  these  con- 
siderations, that  the  object  of  the  statute  is  not  to  impose 
a  punishment  for  an  olFence,  but  to  redress  a  civil  injury. 
For  the  purpose  of  affording  this  redress,  the  legislature 
(as  they  may  in  all  cases  of  civil  injury)  have  deemed  it 
expedient  to  authorize  the  employment  of  process  usually 
applicable  to  criminal  proceedings  alone.  But  the  process 
is  merely  the  form  by  which  the  redress  is  sought.  The 
purpose  to  be  obtained  is  an  indemnity.  As  soon  as  this 
indemnity  is  furnished,  the  object  of  the  law  is  satisfied, 
without  affixing  2iXij  stigma  upon  the  character  of  the 
respondent  as  in  criminal  convictions,  and  in  other  states 
it  is  regarded  as  a  civil  remedy.  The  court  further  say 
that  complaints  under  the  act  are  substantial  civil  suits, 
although  some  of  their  forms  are  adopted  from  the  criminal 
code."  The  said  doctrine  is  contained  in  the  authorities 
above  cited. 

We  think  it  clear  from  the  authorities,  as  well  as  from 
the  nature  and  object  of  the  action,  that  the  suit  brought 
in  this  case  was  a  civil  suit,  and  that  the  defeudant  under 


IOWA  CITY,  JUNE,  1850.  505 


Brown  v.  Harris. 


the  constitution  was  exempt  from  imprisonment.     Tha'' 
portion  of  the  judgment  of  the  district  court  ordering  th 
defendant  John  Holmes  to  be  imprisoned,  is  reversed  at 
the  costs  of  the  defendant  in  error,  and  the  remaining 
portion  of  the  judgment  is  affirmed. 


S.  Whicker,  for  plaintiff  in  error. 
W.  G.  Woocbvard.  for  defendant. 


■»•*•< 


BROWN  et  al,  v.  HARRIS. 

An  attachment  is  vacated  by  a  judgment  of  nonsuit  against  the  plaintiff. 
Where  a  nonsuit  is  set  aside,  and  a  new  trial  granted,  the  attachment  lien 
vacated  by  the  nonsuit  is  not  revived. 

-  « 

Error  to  Linn  District  Court. 

Opinion  by  Greene,  J.  This  was  an  action  of  trespass 
commenced  before  a  justice  of  the  peace,  hj  William  M. 
Harris  against  Horace  N.  Brown,  William  K  Lewis,  and 
William  Wallace,  for  taking  a  quantity  of  corn  which 
had  been  levied  upon  by  said  Harris  as  constable,  under 
a  writ  of  attachment  sued  out  by  A.  Hollenbeck  against 
Wilbert  L.  Lewis.  Judgment  rendered  against  Brown 
and  Lewis,  and  an  appeal  taken  by  them  to  the  district 
court. 

On  the  trial,  Harris  claimed  the  right  to  recover  in  the 
capacity  of  constable,  and  offered  in  evidence  tne  writ  of 
attachment  issued  in  the  case  of  Hollenbeck  v.  Lewis.  The 
return  upon  the  writ  showed  that  he  liad  attached  the 
undivided  half  of  twenty  acres  of  corn.  The  entries  in  the 
docket  of  the  justice  before  whom  the  attachment  suit  was 
tried  were  admitted  in  evidence.  Among  other  things,  the 
docket  shows,  that  on  the  return  day  of  the  writ,  October 
3,  1846,  the  plaintiff  appeared,  but  the  defendants  not 
Vol.  II.  33 


506  SUPREME  COURT  CASES, 

Brown  v.  Harris. 

having  been  served  v^itli  process,  it  was  ordered  that  the 
cause  be  set  for  trial  November  2,  1846,  at  10  o'clock  a.m., 
and  that  the  plaintiff  give  notice  as  required  by  law.  On 
that  day  the  parties  failed  to  appear,  and  there  being  no 
proof  of  the  requu-ed  notice,  the  plaintiff  was  nonsuited. 
November  7,  1846,  plaintiff  filed  an  afRda^-it,  and  a  motion 
to  set  aside  the  judgment  of  nonsuit,  which  motion  was 
granted,  and  a  new  trial  ordered  to  be  heard  on  the  23d  of 
said  month ;  and  Lewis  was  served  with  notice  of  the  new 
trial.  On  the  day  appointed  for  trial,  the  defendant  failed 
to  appear,  and  thereupon  judgment  was  rendered  against 
him  for  the  sum  of  $36.25. 

After  the  said  docket  of  the  attachment  suit  was  intro- 
duced, the  defendant  requested  the  court  to  instruct  the 
jury,  that  the  judgment  of  nonsuit  in  said  attachment  case 
destroyed  the  attachment  lien  although  the  nonsuit  was 
subsequently  set  aside.  But  the  instruction  was  refused, 
and  this  refusal  constitutes  the  principal  ground  of  error 
contended  for  in  this  case.  The  only  question,  then,  to  be 
determined  is.  Will  a  nonsuit  of  proceedings  commenced 
by  attachment  vacate  the  lien  ? 

The  statute  authorizes  justices  to  render  judgment  of 
nonsuit  when  plaintiffs  fail  to  appear  in  the  manner  pro- 
vided, and  to  set  aside  such  judgments,  where  good  cause 
is  shown,  within  six  days  after  the  rendition.  Rev.  Stat., 
323,  §§  1-4. 

In  deciding  the  present  question,  it  is  not  necessary  to 
inquire  into  the  regularity  of  the  proceedmgs  by  which 
the  nonsuit  in  the  attachment  case  was  set  aside.  We  are 
only  called  upon  to  decide  whether  the  instruction  asked 
and  refused  should  not  have  been  given  to  the  jury. 

Ordinarily  a  nonsuit  is  regarded  as  the  final  determin- 
ation of  the  action,  and  of  all  process  connected  with  its 
commencement  and  progress.  As  a  consequence,  then,  any 
attachment  levy  would  be  vacated  by  such  a  judgment. 
It  is  true,  under  our  statute,  a  judgment  of  nonsuit  may  be 
set  aside  and  a  new  trial  granted.  But  in  wliat  way  can 
this  revive  the  attachment  lien,  which  was  destroyed  by 


IOWA  CITY,  JUNE,  1850.  507 


Brown  v.  Harris. 


the  nonsuit  ?  The  new  trial  ordered  extends  only  to  the 
cause  of  action  and  revives  the  issue  between  the  parties, 
but  it  imparts  no  vitality  to  a  levy  which  had  been  vacated 
by  the  nonsuit.  It  does  not  even  revive  the  original  writ ; 
a  new  process  is  required,  which  is  to  be  served,  executed 
and  returned  in  like  manner  as  a  summons.  Rev.  Stat., 
324,  §  4. 

The  attachment  act  provides,  that  when  an  attachment 
shall  be  dissolved,  all  proceedings  touching  the  property 
and  effects  attached  shall  be  vacated,  and  the  suit  proceed 
as  if  it  had  been  commenced  by  summons  only.  Rev. 
Stat.,  342,  §  13.  As  the  nonsuit  did  in  effect  dissolve  the 
attachment,  it  necessarily  follows  that  the  property  was 
released  from  the  writ ;  and  after  the  suit  was  opened  up, 
it  could  only  be  conducted  as  if  commenced  by  summons. 

It  has  been  decided  in  other  states,  that  judgment  for 
the  defendant,  ipso/acto,  dissolves  an  attachment,  and  that 
the  officer  cannot  detain  the  property  though  the  plaintiff 
sues  out  a  wTit  of  review.  Clap  v.  Bell,  4  Mass.,  99; 
Johnson  v.  Edson,  2  Aik.,  299;  Smjdam  v.  Iluggeford, 
23  Pick.,  465.  Applying  the  principle  of  those  decisions 
to  the  case  at  bar,  we  think  it  must  follow  that  a  judg- 
ment of  nonsuit  against  an  attachment  plaintiff  will,  ip)so 
facto,  destroy  his  lien,  although  the  nonsuit  may  have  been 
set  aside,  and  the  court  below  should  have  instructed  the 
jury  to  that  effect. 

Judgment  reversed. 

S,  Whicker  and  P.  Smith,  for  plaintiffs  in  enxn; 

/.  M,  Preston  and  (7.  BateSy  for  defendant. 


I 


608  SUPREME  COURT  CASES, 

Greene  &  Brothers  v.  Ely. 


GREENE  &  BROTHERS  v.  ELY.* 

The  statute  in  relation  to  mechanics'  liens  should  be  strictly  pursued. 

A  petition  describing  the  prop'.-rty  and  stating  the  nature  of  the  indebted- 
ness is  not  sufficient;  it  should  be  accompanied  with  a  bill  of  particulars 
of  the  materials  or  labor  furnished. 

The  acceptance  of  a  note  is  not  a  relinquishment  of  a  mechanics'  lien,  unless 
it  appears  to  have  been  intended  as  a  waiver  of  the  lieu. 

Ekror  to  Linn  District  Court. 

Opinion  hy  Kinney,  J.  Greene  &  Brothers  filed  their 
petition  for  a  mechanics'  lien  under  the  statute,  setting 
forth  that  Alexander  L.  Ely  in  his  lifetime  was  seized  in 
fee  simple  of  a  certain  tract  or  lot  of  land  situate  in  the 
town  of  Cedar  Rapids  in  said  county,  and  known  as  lots 
4  and  6,  in  fractional  block  3 ;  and  that  said  Ely  in  his 
lifetime  did  contract,  on  the  16th  day  of  February,  1848, 
with  petitioners  for  a  large  amount  of  materials,  work  and 
labor,  which  was  done,  delivered  and  performed  by  peti- 
tioners for  said  Ely,  for  the  purpose  of  erecting  a  flouring 
mill  on  the  lots  of  land  aforesaid,  and  that  in  pursuance 
of  said  contract,  said  materials,  work  and  labor  were 
furnished  for  the  said  Ely,  for  the  erection  of  said  mill. 
The  petition  further  states,  that  said  Ely  in  his  lifetime 
accounted  to  and  with  the  petitioners  for  the  work,  labor 
and  materials  furnished  as  aforesaid,  for  the  erection  of 
said  flouring  mill,  and  upon  such  accounting  there  was 
found  to  be  due  petitioners  the  sum  of  $1327.94,  and  that 
the  said  Alexander  L.  Ely,  on  the  IGth  day  of-  February, 
1848,  executed  and  delivered  to  petitioners  his  certain  pro- 
missory note  for  the  above  sum,  as  a  balance  due  them  for 
the  labor  and  materials  as  aforesaid,  which  said  note  was 
due  one  day  from  the  date  thereof,  and  a  copy  of  the  same 
filed  and  made  part  of  the  petition. 

The  petition  contains  the  usual  prayer  for  the  adminis- 

•  Greene,  J.,  took  no  part  in  deciding  this  case  and  that  of  Mix  v.  Ely. 


IOWA  CITY,  JUNE,  1850.  509 

Greene  &  Brothers  v.  Ely. 

trator  to  be  a  party,  &c.,  and  a  prayer  for  judgment  and 
a  meclianics'  lien  on  the  lots  of  land  and  flouring  mill 
erected  thereon,  and  for  all  the  benefits  of  an  cot  entitled, 
"  An  act  relative  to  mechanics'  liens  and  other  purposes," 
approved  13th  February,  1843. 

The  copy  of  the  note,  as  set  out  in  the  petition,  reads  as 
follows : 

<'  $1327.94. 

"  One  day  after  date,  I  promise  to  pay  Greene  &  Brothers 
or  order,  the  sum  of  one  thousand  three  hundred  and 
twenty-seven  dollars  and  ninety-four  cents,  with  interest 
at  the  rate  of  ten  per  cent.,  for  value  received;  it  being 
the  balance  due  said  Greene  &  Brothers  on  settlement  for 
material,  and  for  paying  for  work  on  my  flom-ing  mill  at 
Cedar  Rapids.  Alexander  L.  Ely. 

"  February  16,  1848." 

A  precipie  was  filed  with  the  petition,  requiring  the 
clerk  to  issue  a  summons  and  indorse  thereon,  ^^  Action 
brought  for  Mechanics'  Lien.''* 

A  special  demurrer  was  filed  by  the  defendant  to  the 
petition,  assigning  for  cause,  among  other  things,  that  no 
person  as  heir  or  devisee  of  said  Alexander  L.  Ely,  and 
no  person  as  his  widow,  and  who  are  interested  in  the  real 
estate  of  said  deceased,  is  made  party  to  said  suit.  The 
court  sustained  the  demurrer,  whereupon  the  petitioners 
asked  and  obtained  leave  to  amend  their  petition. 

An  amended  petition  was  then  filed,  making  the  widow 
and  heirs  of  the  deceased  parties,  and  setting  forth  more 
in  detail  the  alleged  facts  connected  with  the  furnishing  of 
labor  and  materials  for  the  erection  of  said  mill. 

The  defendants  demurred  to  the  amended  petition,  and 
assigned  for  special  cause  of  demurrer : 

1.  That  no  contract  was  set  forth  within  the  meaning  of 
the  statute. 

2.  It  is  not  alleged  that  said  work  and  labor  and 
materials  were  furnished  by  virtue  of  any  contract  within 
the  true  intent  and  meaning  of  the  statute. 


510  SUPREME  COURT  CASES, 

Greene  &  Brothers  v.  Ely. 

3.  No  bill  of  particulars  of  work,  labor  and  material  is 
given. 

4.  That  the  note,  of  which  a  copy  is  filed,  and  upon  which 
the  petition  is  based,  is  not  sufficient  to  sustain  the  same. 

5.  Said  petition  does  not  show  what,  and  what  amount 
of  work,  labor  and  materials,  respectively  or  collectively, 
was  contracted  for. 

6.  That  a  promissory  note  was  taken  in  payment. 
This  demurrer  was  sustained  by  the  court,  and  the  said 

petition  in  law  deemed  insufficient  to  enable  the  peti- 
tioners to  recover  thereon. 

This  decision  of  the  court  we  think  correct.  The  third 
specification  of  demurrer  is  well  assigned.  The  statute 
in  relation  to  mechanics'  liens  being  in  derogation  of  the 
common  law,  should  be  strictly  complied  with.  Unless 
those  entitled  to  the  lien  created  by  the  statute  come 
within  its  provisions,  they  cannot  obtain  the  aid  for 
which  it  was  enacted.  The  lien  is  purely  statutory,  and 
the  manner  of  enforcing  it  clearly  defined,  and  while  such 
a  statute  should  receive  a  construction  so  as  to  make  it 
effective,  and  accomplish  the  object  the  legislature  had  in 
view,  still  an  essential  departure  from  its  plain  and  obvious 
requirements  will  be  fatal  to  those  who  attempt  to  enforce 
it.  Rev.  Stat.,  381,  §  2,  among  other  things  provides, 
that  if  an  action  to  enforce  a  lien  shall  be  commenced  in 
the  district  court,  it  shall  be  by  bill  or  petition,  describing 
with  common  certainty  the  tract  of  land,  town  lot,  build- 
ing, mill  or  machinery  upon  which  raid  lien  is  intended  to 
be  made  to  operate,  and  also  the  nature  of  the  contract  or 
indebtedness,  nith  a  bill  of  particulars  of  his  account.  It 
is  not  sufficient  to  file  a  petition  describing  the  property 
and  nature  of  the  indebtedness,  but  a  bill  of  particulars, 
with  specific  items  of  materials  or  labor  furnished,  or  both 
as  the  case  may  be,  must  accompany  the  petition. 

This  being  required,  a  compliance  is  as  necessary  before 
the  petitioner  is  entitled  to  his  lien,  as  the  observance  of 
any  other  provision  pointed  out  by  the  statute. 

But  it  was  said  in  the  argument  that  a  copy  oi  the  note 


I 


IOWA  CITY,  JUNE,  1850.  511 

Greene  &  Brothers  v.  Ely. 

riled  with  the  petition  was  a  sufficient  bill  of  particulars. 
For  the  mere  purpose  of  collecting  a  debt,  a  note  given 
in  settlement  of  items  of  indebtedness  obviates  the  neces- 
sity of  any  bill  of  particulars.  The  items  have  become 
merged  in  the  note,  and  the  payor,  by  executing  the  note, 
acknowledges  the  correctness  of  all  the  charges.  But  not- 
withstanding this,  a  note  is  not  a  bill  of  particulars,  neither 
can  it  take  the  place  of  it,  when  the  statute  demands  the 
bill  to  be  filed.  Judgment  could  be  obtained  upon  the 
note  without  the  bill  of  particulars,  but  when  the  peti- 
tioner asks  to  have  certain  property  held  by  virtue  of  a 
special  lien  provided  by  statute,  it  then  becomes  import- 
ant for  the  defendant  to  know  the  items  uj)on  which  he 
predicates  his  lien,  and  for  the  court,  before  they  can 
allow  the  lien,  to  ascertain  whether  the  indebtedness  foi 
which  the  lien  is  sought  is  made  up  of  such  items,  and 
accrued  upon  such  contract,  as  will  justify  the  court  under 
the  statute  in  granting  the  lien. 

But  we  deem  it  unnecessary  to  show  further  the  utility 
of  a  bill  of  particulars  in  all  cases  of  petitions  under  the 
act.  The  statute  in  express  terms  requires  it,  and  it  is  the 
duty  of  com'ts  to  declare  and  enforce  the  law  as  it  exists. 

But  it  was  further  said  in  the  argument,  that  the  note 
itself  sufiiciently  designates  the  character  of  the  indebt- 
edness to  enable  the  plaintiffs  to  obtain  a  lien.  We  do 
not  think  so.  Upon  the  other  hand,  the  note  to  some 
extent  is  evidence  against  the  i)etitioners,  and  proves  that 
they  are  not  entitled  to  a  lien  for  a  portion  of  the  amount 
for  which  it  was  given.  Section  1  of  the  Rev.  Stat.,  p. 
380,  provides,  that  in  all  cases  hereafter,  when  any  con- 
tract sliall  be  made  between  the  owner  of  any  tract  of 
land  or  town  lot,  or  the  lessee  of  any  tract  of  land  or  town 
lot,  with  the  owner's  knowledge  or  consent  on  the  one 
part,  and  any  person  on  the  other  part,  for  the  erecting  or 
repairing  any  house  or  other  building,  mill  or  machinery,  or 
tlieh  appurtenances,  or  iox  furnishing  labor  or  materials  for 
the  purposes  aforesaid,  and  every  person  who  may  have  fur- 
nished materials  which  may  have  been  used  in  the  construe- 


612  SUPREME  COURT  CASES, 

Greene  &  Brothers  v.  Ely. 

tion  of  sucli  house,  building  or  mill  by  agreement,  the  per- 
sons who  shall,  in  pursuance  of  such  contract,  have  furnished 
labor  or  materials  for  such  purposes,  shall  have  a  lien,  &c. 

The  statute  gives  the  right  to  the  lien  to  the  following 
persons  :  1.  Those  who  shall  enter  into  a  contract  with 
the  owner  of  anj'-  tract  of  land  or  town  lot,  to  erect  or 
repair  any  house,  building  or  machinery ;  2.  Those  who 
contract  for  a  like  purpose  with  the  lessee  of  any  tract  of 
land  or  town  lot,  with  the  owner's  knowledge  or  consent ; 
3.  Those  who  furnish  labor  or  materials  for  the  purpose  of 
erecting  or  repairing  such  buildings,  mill  or  machinery, 
fee.  ;  and  4.  Those  who  may  have  furnished  materials 
which  may  have  been  used  in  the  construction  of  such 
buildings,  &c.  These  are  the  only  persons  provided  for, 
and  an  individual  is  only  entitled  to  the  benefits  of  the 
statute  by  exhibiting  an  indebtedness  which  falls  within 
some  of  the  above  provisions.  The  note  relied  upon  in 
this  case  is  given  for  a  balance  due  said  Greene  &  Brothers 
on  settlement  for  materials,  and  for  paying  for  work  on 
the  flouring  mill.  The  statute  does  not  extend  to  those 
who  pay  for  work  or  materials,  but  to  such  as  furnish 
them.  In  the  former  case  the  credit  is  given  to  the  man, 
in  the  latter  the  creditor  looks  to  the  building. 

As  the  nature  of  the  indebtedness  provided  for  by  statute 
is  clearly  defined,  it  follows  that  a  lien  can  only  be  acquired 
npon  such  indebtedness  as  is  therein  specified,  and  as  there 
is  no  provision  for  a  lien  in  favor  of  those  who  pay  for  labor, 
that  portion  of  the  note  proves  upon  its  face  that  the  peti- 
tioners were  not  entitled  to  the  benefit  of  the  statute  to  the 
extent  of  their  demand. 

It  was  argued  at  some  length  on  the  trial  of  this  cause, 
that  the  petitioners  were  barred  from  asserting  a  lien  in 
consequence  of  having  received  a  promissory  note  on  settle- 
ment. We  do  not  think  so.  In  case  of  Goble  v.  Gale,  7 
Blackf.,  218,  it  was  held,  that  a  mechanics'  lien  for  work 
done  was  not  waived  by  taking  his  employer's  note  for 
the  money  due  for  the  work,  and  in  giving  a  receipt  in  full 
for  such  money,  the  note  not  being  paid,  and  that  in  ab- 


IOWA  CITY,  JUXE,  1850.  513 

Mix  V.  Elj-, 

gence  of  proof  to  sliow  that  the  taking  of  the  note  was 
intended  as  a  waiver  of  the  lien,  the  lien  would  still  hold 
good.  Although  we  are  aware  that  a  different  doctrine 
is  to  be  found  in  the  decisions  upon  this  subject,  yet  we 
believe  this  to  be  correct,  and  fully  sustained  by  sound 
reason.  Why  should  not  a  mechanic  be  as  much  entitled 
to  his  lien  after  taking  a  note,  as  a  vendor  after  receiving 
an  obligation  for  the  purchase  money  ?  If  the  note  does 
not  extinguish  the  lien  in  the  latter  case,  by  parity  of 
reasoning  it  ought  not  in  the  former. 

This  we  deemed  it  necessary  to  say  on  this  last  pro- 
position in  support  of  the  right  to  recover,  but  as  the 
petitioners  did  not  comply  with  the  statute  by  filing  a 
bill  of  particulars,  and  as  the  note  on  which  they  pre- 
dicated their  right  to  a  lien  was  evidence  against  them  to 
defeat  such  lien  to  the  amount  claimed,  the  demurrer  was 
correctly  sustained  and  the  judgment  of  the  court  is  there- 
fore aflSrmed. 

Judgment  affirmed. 

Hempstead  f  Burt,  and  /.  M,  Preston,  for  plaintiffs  in 
error. 

W,  G,  Woocbvard  and  Wm.  Smyth,  for  defendant. 


>  •  *  • « 


MIX  V.  ELY. 

A  petition  for  a  mechanics'  lien  set  forth  that  payment  was  to  be  made  as 
the  work  progressed,  and  at  the  completion,  if  any  balance  was  due  the 
plaintiff,  it  should  be  paid  as  might  then  be  agreed  ;  held  that  this  was  a 
Bufficient  statement  of  the  time  of  payment  by  virtue  of  the  contract. 

Where  a  bill  of  particulars  is  as  definite  as  the  nature  of  the  transaction  will 
permit,  it  is  sufficient. 

A  right  to  a  mechanics'  lien  is  not  affected  by  accepting  a  note. 


514  SUPREME  COURT  CASES, 

Mix  V.  Ely. 

Where  a  note  became  due  May  1,  1848,  and  the  summons  in  a  proceeding  for 
a  mechanics'  lien  was  served  March  27,  1849,  it  was  held  that  the  action 
was  commenced  within  the  time  required  by  statute,  i.e.,  within  one  year 
from  the  time  payment  should  have  been  made. 

In  a  proceeding  for  a  mechanics*  lien,  the  administrator  of  defendant's  estate 
may  properly  be  made  a  party,  and  if  plaintiff  takes  a  judgment  without 
making  the  heira  a  party,  he  does  it  at  his  peril. 


Error  to  Linn  District  Court. 

Opinion  ly  Kinney,  J.     The  plaintiff  in  error  filed  his 

j)etition  for  the  benefit  of  a  mechanics'  lien.  The  peti- 
tion was  demurred  to  and  the  demurrer  sustained.  An 
amended  petition  was  filed,  setting  forth  that  on  the  1st 
day  of  January,  1845,  Alexander  L.  Ely,  since  deceased, 
was  the  occupant  and  owner  of  lots  4  and  5  in  block  3  in 
the  town  of  Cedar  Rapids  in  Linn  county.  That  at  that 
time  said  Ely  entered  upon  the  building  of  a  flouring  mill 
on  said  lots,  and  that  petitioner  being  a  practical  mill- 
wright, a  contract  was  made  between  him  and  said  Ely, 
whereby  it  was  agreed,  among  other  things,  that  said  peti- 
tioner should  superintend  the  building  and  construction 
of  said  mill,  and  should  furnish  hands  to  work  on  the 
same,  for  such  reasonable  wages  as  niiglit  thereafter  be 
agreed  upon.  That  said  Ely  was  to  pay  petitioner  from 
time  to  time  as  the  work  progressed,  and  to  settle  with 
petitioner  for  any  balance  which  might  be  due  him  when 
the  work  was  completed,  and  to  pay  the  same  as  should 
then  be  agreed  upon.  That  petitioner,  in  pursuance  of  the 
agreement,  entered  upon  the  performance  of  said  contract 
on  his  part,  and  gave  his  own  services  in  superintending 
the  job,  and  furnished  hands  to  do  the  work  in  building 
said  mill.  "^ 

The  petitioner  further  states  that  he  has  no  written 
copy  or  memorandum  of  said  contract,  and  that  none  was 
made,  and  that  he  lias  not  the  account  of  tlie  work  and 
labor  performed,  and  furnished  in  building  said  mill, 
and  cannot  set  forth  the  same  item  for  item,  but  that 
8  memorandum  of  the  substance  of  said  contract  will 


IOWA  CITY,  JUNE,  1850.  515 

Mix  V.  Ely. 

"be  found  in  the  books  of  said  Alexander  L.  Ely,  and  in 
the  hands  of  the  defendant,  and  charges  that  on  the  said 
hooks  will  be  found  the  full  particulars  of  all  his  accounts. 
Petitioner  further  states  that  by  said  books  a  settlement 
up  to  the  close  of  the  year  1846  was  made  in  May,  1847, 
and  the  situation  of  the  accounts  up  to  that  time  entered 
thereon ;  and  that  on  the  completion  of  said  mill,  to  wit, 
on  the  23d  day  of  December,  1847,  petitioner  and  said 
Ely  had  a  final  settlement  of  all  the  work  furnished  by 
said  petitioner,  and  that  for  such  work  in  erecting  said 
mill  there  was  found  a  balance  due  petitioner  of  $373.5, 
all  of  which  petitioner  charges  to  be  correct,  and  calls 
upon  defendant  to  produce  said  books  for  more  full  and 
particular  information.  Petitioner  further  states,  that 
upon  such  final  settlement  said  Ely  gave  to  petitioner  his 
promissory  note  for  the  amount  so  found  due  him,  which 
said  note  was  given  for  the  work  aforesaid  in  erecting 
said  mill,  a  copy  of  which  is  set  out  in  the  petition,  and 
was  as  follows : 

"  For  value  received  I  promise  to  pay  R.  C.  Mix  or 
bearer  three  hundred  and  seventy- three  dollars  and  five 
cents,  on  the  first  day  of  May  next  with  interest. 

"  December  23,  lbi47.  Alexander  L.  Ely." 

Petitioner  charges  that  this  amount  is  now  due  and 
unpaid,  and  prays  that  the  same  may  be  adjudged  a  lien 
on  the  aforesaid  premises,  and  for  special  execution  to  sell 
the  same,  that  the  said  John  F.  Ely,  administrator  of  tlie 
estate  of  said  Alexander  L.  Ely,  may  be  made  party 
defendant,  &c.,  and  for  general  relief. 

Accompanying  the  petition  was  a  bill  of  particulars 
which  petitioner  alleges  is  as  perfect  as  he  can  make  it 
witliout  reference  to  the  books  of  said  Ely.  This  bill  of 
particulars  specifies  the  work  done  by  petitioner,  and 
furnished  by  him,  the  date,  and  amount  due  after  deduct- 
ing out  the  credits. 

The  petition  was  demurred  to  by  the  defendant  for  the 
following  special  causes : 


516  SUPREME  COURT  CASES, 


Mix  V.  Ely. 


1.  That  no  contract  was  set  fortli  within  the  intent  of 
the  statute. 

2.  That  the  time  of  payment  by  virtue  of  the  contract 
was  not  stated. 

3.  That  no  sufficient  bill  of  particulars  was  set  forth. 

4.  That  the  plaintiff  took  and  accepted  the  defendant's 
promissory  note  for  the  balance  claimed  according  to  the 
petition,  and  therein  gave  time  for  payment. 

5.  The  action  was  not  commenced  within  one  year  after 
payment  was  to  be  made  -by  virtue  of  the  contract. 

6.  The  proper  parties  to  the  bill  are  not  made. 

This  demurrer  was  sustained  by  the  court,  and  the 
petition  deemed  insufficient  in  law  to  enable  the  plaintiff 
to  maintain  his  lien. 

We  think  the  court  erred  in  sustaining  the  demurrer. 

The  contract  is  sufficiently  stated  in  the  petition,  and 
the  time  of  paj^ment  as  well  specified  as  could  have  been 
done  according  to  the  terms  of  the  agreement.  Payment 
was  to  have  been  made  as  the  work  progressed,  and  at  the 
completion  of  the  mill,  if  any  balance  was  due  the  plaintiff, 
the  same  was  to  be  paid  as  should  then  be  agreed  on.  This 
disposes  of  the  first  and  second  causes  of  demurrer. 

In  relation  to  the  third,  we  have  already  decided,  in  the 
case  of  Greene  ^^  Brothers  v.  Ely*  tried  at  the  present 
term  of  the  court,  that  a  bill  of  particulars  was  neces- 
sary. But  in  this  case,  there  is  a  bill  of  particulars,  which, 
although  not  as  full  as  it  ought  to  be  in  ordinary  causes 
of  this  nature,  yet  it  appears  from  the  statements  of  the 
petitioner  to  be  as  specific  as  was  possible  for  him  to  make. 
It  seems  that  from  the  confidence  he  reposed  in  the  in- 
tegrity of  Mr  Ely,  he  had  entrusted  the  keeping  of  his 
accounts  entirely  to  him.  His  books  contained  all  the  items, 
from  them  the  settlements  had  been  made,  and  they  were 
in  the  possession  of  the  administrator,  inaccessible  to  the 
plaintiff.  The  defendant  is  in  possession  of  all  the  informa- 
tion upon  the  subject  of  the  indebtedness,  and  he  is  called 
upon  to  produce  the  books  in  court  which  exhibit  all  the 

*  Ante.  508. 


IOWA  CITY,  JUNE,  1850.  517 

Mix  V.  Ely. 

facts.  If  it  were  possible  to  dispense  with  the  filing  of  a 
bill  of  particulars,  this  case  would  present  a  seeming  pro- 
priety in  doing  so.  But  as  the  statute  is  inflexible  upon 
this  subject,  the  rule  cannot  be  relaxed.  However,  the 
plaintiff  has  saved  his  case  in  this  respect,  by  filing  a  bill 
of  particulars,  and  has  furnished  a  forcible  reason  for  not 
making  it  more  definite  and  pointed. 

The  fourth  cause  of  demurrer  is  answered  in  the  case 
above  referred  to.  The  settlement  of  a  demand  by  note, 
which  in  its  nature  entitled  the  creditor  to  the  lien  pro- 
vided by  statute,  will  neither  bar  nor  affect  the  lien,  unless 
there  is  evidence  to  show  that  the  right  to  the  lien  was 
waived  by  accepting  the  note. 

Upon  examination  it  is  found  that  the  fifth  cause  of  de- 
murrer is  not  sustained  by  the  facts.  The  note  was  given 
on  the  2d  of  December,  1847,  and  was  due  on  the  1st  of 
May,  1848.  The  summons  was  served  on  the  27th  March, 
1849.  The  second  section  of  the  act,  p.  318,  provides,  that 
*'  when  any  person  shall  wish  to  avail  himself  of  the  bene- 
fits of  such  lien,  he  shall  commence  his  action  in  any 
court  having  jurisdiction  of  the  same,  within  one  year 
from  the  time  payment  should  have  been  made  by  vii-tue 
of  such  contract,  by  which  such  lien  shall  be  claimed." 

The  payment  of  the  note  on  the  contract  which  created 
the  lien  should  have  been  made  on  the  1st  day  of  May, 
1848.  It  was  only  necessary,  then,  to  commence  the  suit 
within  one  year  from  that  time.  By  the  terms  of  the  con- 
tract, as  set  forth  in  the  petition,  (and  which  are  admitted 
to  be  correct  by  the  demurrer,)  the  amount  due  the  plain- 
tiff on  the  completion  of  the  work  was  to  be  paid  at  such 
time  as  sliould  then  be  agreed  upon.  The  parties  agreed 
upon  the  1st  of  May  for  such  payment.  According  to  the 
state  of  the  pleadings,  this  is  the  same  as  if  the  parties 
had  agreed  in  the  original  contract  upon  that  time  as  the 
time  for  the  final  payment ;  and  hence,  in  computing  the 
time  for  the  commencement  of  the  action,  it  should  be 
reckoned  from  the  day  of  the  maturity  of  the  note,  and 
not  from  the  day  when  the  work  was  completed.     But  we 


518  SUPREME  COURT  CASES, 

Durham  v.  Daniels. 

are  not  prepared  to  say  that  such  would  be  the  rule,  if 
time  for  payment  in  the  original  contract  was  not  stipu- 
lated by  the  parties. 

But  it  is  said  that  "  the  proper  parties  are  not  made  to 
the  bill."  Whether  the  demurrant  means  by  this  specifi- 
cation party  plaintiffs  or  party  defendants,  the  demurrer 
does  not  advise  us.  It  is  entirely  too  vague  and  indefinite. 
The  administrator  is  certainly  for  one  a  proper  party,  and 
if  there  are  others,  heirs  for  instance,  who  should  have 
been  made  parties,  the  petitioner  takes  his  lien  and 
special  execution  at  his  peril.  A  proceeding  to  enforce 
a  mechanics'  lien,  affecting  as  it  does  the  realty,  cannot 
bind  or  preclude  the  heirs  from  asserting  their  rights, 
unless  they  are  party  to  such  proceeding. 

But  in  this  case,  there  is  no  allegation  or  suggestion 
either  in  the  petition  or  demurrer  that  there  are  heirs, 
and  the  court  upon  special  demurrer  are  not  at  liberty  to 
presume  anything  which  does  not  appear  of  record. 

The  judgment  of  the  court,  therefore,  upon  the  demurrer 
is  reversed,  and  the  case  remanded  for  further  proceedings 
not  inconsistent  with  this  opinion.  ' 

Judgment  reversed. 

Davis  (f"  Bissell,  for  plaintiff  in  error. 

W.  G,  Woodward  and  Wm,  Smyth^  for  defendant. 


> »  »  •  • 


DUKHAM  V.  DANIELa 

Where  the  conrt  instructed  the  jury  in  relation  to  the  legal  effect  of  deedi^ 

it  cannot  be  considered  a  charge  upon  the  facts. 
All  acts  of  iucoiporatioii  are  made  public,  and  as  such  may  be  given  in 

evidence ;  such  an  act  creates  tlie  presumption  that  the  corporation  does 

exist  de  facto. 


IOWA  CITY,  JUNE,  1850.  519 


Durham  v.  Daniels. 


Errok  to  Linn  District  Court. 

Opinion  by  Greene,  J.  An  action  of  right,  commenced 
by  S.  W.  Durham  against  A.  Daniels,  for  a  tract  of  land 
adjoining  the  town  of  Marion.  Pleadings  in  the  usual 
form.  Cause  submitted  to  a  jury.  Credit  for  the  plain- 
tiff with  $12  damages.  There  having  been  no  proof  of 
damages,  plaintiff  entered  a  reniittiter  for  $11.99  of  the 
damages  assessed.  Defendant  filed  a  motion  for  a  new 
trial,  which  was  granted. 

At  the  next  term  of  court,  the  cause  was  again  sub- 
mitted to  a  jury,  and  a  verdict  returned  for  the  defendant. 
Motion  for  a  new  trial  overruled,  and  judgment  rendenjd 
upon  the  verdict. 

Upon  the  trial  it  appeared  that  both  parties  claimed 
title  to  the  land  in  question  from  Henry  Oliver,  who  pur- 
chased and  held  the  patent  from  the  United  States.  The 
plaintiff,  in  support  of  his  right,  submitted  a  deed  from 
Oliver  to  Robinson,  dated  February  11,  1845,  one  from 
Robinson  to  Scott,  dated  in  May,  1845,  and  one  from 
Scott  to  plaintiff,  dated  March  8,  1847.  The  defendant 
claimed  by  virtue  of  deeds  from  Oliver  to  a  corporation 
known  as  the  "  Marion  Lyceum."  Said  deeds  were  dated 
February  24,  1843,  and  January  5,  1844. 

By  request  of  defendant,  the  court  instructed  the  jury, 
**  That  Oliver,  at  the  date  of  the  deed  to  Robinson,  had  no 
title,  and  consequently  the  plaintiff  could  derive  no  title 
under  said  deed  from  Robinson,  and  that  if  the  jury  be- 
lieve from  the  evidence  that  the  title  to  the  land  in  con- 
troversy is  in  the  Marion  Lyceum,  the  plaintiff  cannot 
recover  against  the  defendant,  unless  by  virtue  of  some 
title  from,  through,  or  under  said  Lyceum." 

The  objection  lu-ged  to  the  proceedings  below  are  mainly 
founded  upon  those  instructions. 

1.  It  is  m-ged  that  the  court  usurped  the  province  of 
the  jury,  and  charged  them  upon  the  facts  instead  of  the 
law  in  the  case.     But  we  think  the  instructions  are  legiti- 


520  SUPREME  COURT  CASES, 

Zerfing  v.  Mourer. 

mate.  They  merely  explain  to  the  jury  the  legal  effect 
of  those  deeds.  They  only  amount  to  a  plain  self-evident 
proposition  in  law,  that  after  a  man  has  conveyed  away 
all  his  title  to  a  lot  of  land,  a  subsequent  deed  from  him 
can  impart  no  right. 

2.  It  is  contended  that  the  defendant,  in  attempting  to 
show  an  outstanding  title  in  the  Marion  Lyceum,  should 
first  prove  that  it  did  exist  de  facto  with  capacity  to  hold 
real  estate.  As  nothing  appears  in  the  record  to  the  con- 
trar}',  the  legal  presumption  must  follow,  that  the  court 
Lelow  did  not  act  without  adequate  evidence.  Besides, 
the  Marion  Lyceum  is  a  corporation,  which  the  court 
could  notice  ex  officio.  It  was  incorporated  by  an  act  of 
the  legislature,  (Laws  of  1841,  p.  16,)  and  all  acts  of  in- 
corporation are  declared  public,  and  as  such  may  be  given 
in  evidence.     Rev.  Stat,  572,  §  2. 

Other  errors  were  assigned  and  urged  in  this  court,  but 
as  they  are  not  sustained  by  the  record,  we  do  not  consider 
it  necessary  to  notice  them. 

Judgment  affirmed. 

/.  M,  Preston^  for  plaintiff  in  error. 

W,  Smyth  and  N,  W,  Isbell,  for  defendant. 


I 


ZERFING  V.  MOimER. 

In  an  action  of  trespass  for  debauching  plaintiff's  daughter,  if  he  did  not 
actually  connive  at  the  guilty  iutercourse,  evidence  of  loss  occasioned  by 
it  will  justify  a  recovery.  Proof  of  careless  indifference  could  only  go  in 
mitigation  of  damages. 

Erkor  to  Cedar  District  Court. 

Opi?don  hy  Greene,  J.     This  was  an  action  of  trespass 
on  the  case,  brought  by  George  Mom-er  for  debauching  hi& 


IOWA  CITY,  JUNE,  1850.  521 

Zerfing  v.  Mourer. 

daughter,  whereby  she  became  pregnant  and  was  delivered 
of  a  child.  Plea,  Not  guilty.  Verdict  and  judgment  for 
the  plaintiff. 

On  the  trial,  defendant  requested  the  court  to  instruct 
the  jm-y,  that  if  the  plaintiff,  by  a  careless  indifference  of 
his  daughter's  cliastity,  whether  by  design  or  otherwise, 
has  afforded  facilities  of  criminal  intercourse  between  his 
daughter  and  the  defendant,  he  cannot  recover.  The  com't 
refused  to  give  this  instruction  as  ashed,  and  instead  of  it, 
charged  the  jmy,  that  if  from  the  testimony  they  believed 
the  plaintiff  had,  by  a  careless  indifference  for  his  daugh- 
ter's chastity,  either  by  design  or  otherwise,  afforded  facili- 
ties for  criminal  intercourse  between  her  and  the  plain- 
tiff, it  would  be  matter  in  mitigation  of  damages  only,  and 
not  a  bar  to  plaintiff's  recovery. 

The  plaintiff's  loss  of  his  daughter's  service  caused  by 
the  defendant's  carnal  intercourse  with  her,  constitutes 
the  gravamen  of  this  action.  If,  therefore,  the  plaintiff  did 
not  actually  connive  at  the  guilty  intercom'se,  evidence  of 
loss  occasioned  by  it  would  be  sufficient  to  justify  a  recov- 
ery. If  instances  of  careless  indifference  for  a  daughter's 
chastity  should  be  admissible  to  defeat  a  suit  of  this  char- 
acter, the  action  could  seldom  be  maintained.  Such  in- 
stances might  be  adduced  in  every  proceeding  of  the  kind. 
The  fact  that  a  parent  should  ever  suffer  his  daughter  to 
place  herself  in  any  situation  where  she  might  be  seduced, 
could  under  such  a  rule  be  referred  to  the  jury  as  evidence 
of  "  careless  indifference."  And  thus  the  very  proof  of 
debauchery  would  defeat  the  cause  of  action  it  was  in- 
tended to  establish,  by  showing  that  through  the  careless- 
ness or  indifference  of  a  father,  the  daughter,  at  an  unlucky 
moment,  was  permitted  to  go  beyond  his  immediate  ob- 
servation, when  she  was  entrammeled  by  the  seducer,  or 
voluntarily  injured  by  her  paramour. 

Should  that  doctrine  obtain,  this  action  could  never  be 
maintained  by  the  poor  father,  whose  destitute  situation 
requires  the  absence  of  his  child  from  a  parent's  vigilance, 
to  aid  in  procuring  means  of  subsistence. 

Vol.  II.  34 


522  SUPEEME  COURT  CASES. 


Fulwider.y,  Peterkin. 


We  are  therefore  of  opinion,  tliat  tlie  instruction  asked 
was  correctly  refused,  and  that  the  court  properly  charged 
the  jury,  that  proof  of  such  careless  indiiference  should 
only  go  in  mitigation  of  damages. 

Judgment  affirmed. 

S.  WMcher  and  S.  A.  Bissell,  for  plaintiff  in  error. 
J.  P.  Cook,  for  defendant. 


FULWIDER  V.   PETERKIlSr. 

The  statute  authorizes  a  proceeding  against  an  executor  or  administrator 
for  a  conveyance  in  pursuance  of  a  contract  with  the  deceased. 

In  a  proceeding  against  an  estate  for  a  specific  performance,  it  is  not  neces- 
sary to  make  the  heirs  a  party  to  the  conveyance. 

In  Equity.     Appeal  from  Cedar  District  Court. 

Opinion  hy  Kinney,  J.  The  bill  tiled  in  this  case  shows 
that  the  appellants  purchased  of  David  Peterkin,  in  his 
lifetime,  (now  deceased,)  on  the  28th  of  April,  1843,  the 
south  half  of  section  10  in  township  79,  north  of  range 
2  west,  in  the  county  of  Cedar,  containing  three 
hundred  and  twenty  acres,  and  that  the  said  Freeman 
&  Fulwider  executed  of  that  date  then*  joint  notes  to 
said  Peterkin,  payable  in  January,  1844,  1845  and  1846, 
amounting  in  all  to  the  sum  of  $600,  and  took  a 
title  bond  "^  for  a  deed  for  said  land,  to  be  made  upon 
the  payment  of  said  notes.  David  Peterkin  died  without 
having  made  a  deed,  and  before  the  complainants  were 
entitled  to  one.  Alexander  Peterkin  was  made  adminis- 
trator, who,  on  the  31st  day  of  September,  1847,  obtained 
a  judgment  on  these  notes  for  $649.12.  The  bill  charges, 
that  it  is  not  in  the  power  of  the  administrator  to  make 
a  good  and  sufficient  deed  to  complainants,  as  there  was 


I 


IOWA  CITY,  JUNE,  1860.  523 


Fulwiiler  v.  Peterkin. 


po  provision  in  the  contract  by  which  the  heirs  were  bound 
to  make  a  deed  in  the  event  of  death.  That  the  consid- 
eration of  the  notes  on  which  judgment  was  obtained  was 
tlie  contract  for  the  laud,  wliich  complainants  charge  was 
not  complied  with  by  said  David  in  his  lifetime,  and  can- 
not now  be  enforced.  That  the  said  defendant  having  ob- 
tained the  judgment,  was  about  to  sue  out  execution  and 
collect  the  same.  The  bill  prays  for  a  cancellation  of  the 
contract,  and  a  perpetual  injunction  against  the  defendant 
from  the  collection  of  said  judgment. 

The  sworn  answer  of  the  defendant  admits  the  making 
of  the  contract  for  the  consideration  stated  in  the  bill,  the 
death  of  David  Peterkin,  the  administration  of  defendant, 
and  the  recovery  of  the  judgment.  Answer  alleges  a  readi- 
ness on  the  part  of  the  administrator  to  carry  out  and 
perfect  the  contract  so  far  as  he  has  power,  and  prays  the 
court  to  empower  him  to  convey  the  land  described  in  the 
contract,  when  payment  ishall  have  been  made  ;  that  as 
complainants  have  not  made  payment,  they  are  not  en- 
titled to  a  conveyance.  The  names  of  the  heirs  of  said 
David,  with  their  residence,  are  disclosed  in  the  answer, 
and  an  allegation  that  the  complainants  have  been  since 
the  making  of  the  contract,  and  still  were,  in  possession  of 
the  laud ;  and  the  answer  concludes  with  a  prayer  for  the 
dissolution  of  the  injunction,  and  that  the  court  may  order 
and  decree  what  shall  be  right  and  equitable  in  the  pre- 
mises. 

Exceptions  to  the  answer  were  filed,  which  were  over- 
ruled by  the  court,  and  the  cause  was  submitted  and  de- 
cided upon  bill  and  answer,  whereupon  the  court  decreed 
a  dissolution  of  the  injunction,  and  that  the  respondent 
be  at  liberty  to  proceed  in  the  collection  of  said  judgment. 
And  it  was  further  decreed,  that  said  judgment  being  first 
satisfied,  that  the  respondent  make  and  execute  to  the  com- 
plainants a  deed  of  conveyance,  conveying  to  them  in  fee 
simple,  the  land  described  in  the  contract. 

Wc  think  the  court  decreed  correctly. 

The  statute  jjrovides,  that  when  any  person  who  is  bound 


524  SUPREME  COURT  CASES, 

Fulwider  v.  Peterkin. 

by  a  contract  in  writing  to  convey  any  real  estate,  shall 
die  before  making  the  conveyance,  the  other  party  may 
have  a  bill  in  equity  to  enforce  a  specific  performance  of 
the  contract  by  the  heirs,  devisees  or  executors  or  admin- 
istrators of  such  deceased  person,  and  that  the  court  shall 
hear  and  determine  such  case  according  to  the  course  of 
proceedings  in  chancery,  and  shall  make  such  decree 
thereon  as  equity  and  justice  shall  require. 

This  statute  contemplates  and  clearly  gives  the  right  to 
proceed  against  either  executor  or  administrator,  for  a  con- 
veyance in  pursuance  of  the  contract  of  the  deceased. 
The  administrator  standing  in  the  place  of  the  deceased 
person,  there  is  an  obvious  propriety  in  making  him  t/ie 
party  in  a  proceeding  to  enforce  the  performance  of  a  con- 
tract made  by  deceased  in  his  lifetime,  the  obligations  of 
which  rest  upon  the  administrator  as  his  representative. 
But  the  statute  has  settled  this  matter  in  such  explicit  lan- 
guage, that  there  cannot  be  room  for  reasonable  doubt. 
The  twenty-ninth  section,  p.  703,  provides,  that  "  if  it  shall 
appear  that  the  plaintiff  is  entitled  to  a  conveyance,  the 
court  may  authorize  or  require  the  executor  or  adminis- 
trator of  the  deceased  party  to  convey  the  estate  in  like 
manner  as  the  deceased  person  might  and  ought  to  have 
done  if  living,  and  if  his  heirs  or  devisees,  or  any  of  them, 
are  within  the  territory  [state]  and  competent  to  act, 
the  court  may  require  them,  or  either  of  them,  instead  of 
the  executor  or  administrator,  to  convey  the  estate  in  the 
manner  before  mentioned,  or  may  require  them,  or  either 
of  them,  to  join  in  such  conveyance  in  the  manner  before 
mentioned."  And  the  thirtieth  section  provides,  that 
every  conveyance  made  in  pursuance  of  such  decree  shall 
be  effectual  to  pass  the  estate  contracted  for,  as  fully  as 
if  when  made  by  the  contracting  party  himself.  It  is 
not  necessary,  in  a  proceeding  under  this  statute  for  a 
specific  performance,  that  the  heirs  should  join  in  the 
conveyance  in  order  to  pass  a  good  title.  The  court  can 
decree  the  administrator  or  executor  to  convey  without 
the  heirs,  and  the  conveyance  made  in  pursuance  of  such 


IOWA  CITY,  JUNE,  1850.  525 

Brown  v.  Tomlinson. 

decree,  will  be  as  effectual  to  pass  an  estate  in  fee,  as  if 
made  by  the  party  in  his  lifetime.  True,  the  court  may 
require  the  heirs  or  devisees,  or  either  of  them,  if  liv- 
ing in  the  state,  to  join  in  such  conveyance,  providing 
they  are  competent  to  do  so;  but  this  is  entirely  within 
the  discretion  of  the  court.  In  this  case,  as  all  of  tlie 
heirs  except  the  administrator,  according  to  the  answer, 
reside  in  England  and  Scotland,  the  court  could  not  com- 
pel them  to  unite  in  the  conveyance. 

The  complainants  having  the  right  by  virtue  of  the 
statute  to  enforce  a  specific  performance  against  the  ad- 
ministrator, and  thereby  obtain  a  decree  against  him,  and 
by  such  decree,  or  a  conveyance  made  in  pursuance  of  it, 
obtain  a  perfect  title ;  the  ground  upon  which  they  pray 
for  a  cancellation  of  the  contract,  and  a  perpetual  injunc- 
tion against  the  collection  of  the  judgment,  is  entirely 
removed.  But  by  the  decree  they  are  not  obliged  to  resort 
to  their  remedy  for  specific  performance,  as  the  court  have 
decreed  a  conveyance  upon  payment  of  the  judgment  afore- 
said. In  this  we  think  complete  justice  has  been  done  to 
the  parties,  and  the  decree  is  therefore  affirmed. 

Decree  affirmed. 

S.  Whicker  and  S.  A.  Bisseli,  for  plaintiffs  in  erro7. 

W,  G.  Woodward^  for  defendant. 


BROWN  V.  TOMLINSON. 

Where  the  breaches  in  any  count  in  a  declaration  "in  covenant  are  well 

assigned,  a  general  demurrer  should  not  be  sustained. 
Under  the  statute,  a  special  covenant  at  the  end  of  a  deed  in  which  the 

grantor  warrants  against  all  claims  from  or  under  him,  does  not  limit  or 

explain  the  more  general  warranties  which  are  covenanted  by  the  words. 

"■grant,  bargain  and  sell." 
A  restraint  by  implication  upon  such  general  warranties  is  no   antl  oriziil 

by  statute ;  it  must  be  positive  and  expressed. 


526  SUPREME  COURT  CASES, 


Brown  v.  Tomlinson. 


Error  to  Cedar  District  Court. 

Opinion  hy  Greene,  J.  An  action  of  covenant  on  a 
deed  executed  by  John  J.  Tomlinson  to  Henry  D.  Brown, 
October  12,  1842.  The  deed  acknowledged  a  consider- 
ation of  $320,  and  conveys  the  N.E.  fractional  quarter  of 
the  N.E.  fr.  qr.  of  section  6,  in  township  80  N.  of  range 
2  W.  of  the  5th  meridian,  containing  forty  and  twelve- 
hundredth  acres ;  and  also  the  N.  half  of  the  N.  W.  qr.  of  the 
same  fr.  qr.  section,  containing  twenty  acres.  In  the  convey- 
ance the  words  "  grant,  bargain  and  sell"  are  used,  and  the 
further  covenant  "  to  warrant  and  for  ever  defend  the  title 
to  the  same  premises  against  the  claims  of  all  and  every 
person  whatsoever,  from  or  under  him."  After  setting 
forth  the  contents  of  the  deed,  the  declaration  avers  that 
at  the  time  and  before  its  delivery,  one  Charles  M.  Jen- 
nings was  seized  in  fee  of  the  twenty  acre  tract  of  land 
as  described  and  set  forth  in  the  deed ;  that  on  the  24th 
day  of  September,  a.d.  1841,  the  said  twenty  acres  of  land 
were  duly  attached  by  William  H.  Tuthill,  for  debts  due 
him  from  said  Jennings  ;  and  on  the  18th  day  of  May, 
1842,  a  judgment  was  rendered  upon  said  attachment  in 
favor  of  said  Tuthill ;  that  execution  issued  in  September 
following,  and  in  October  of  the  same  year,  the  land  was 
duly  sold  to  said  Tuthill,  to  whom  a  sheriff's  deed  was 
executed  June  7,  1844,  by  virtue  of  which  he  took  posses- 
sion, and  was  seized  in  fee  of  said  twenty  acres  of  land ; 
that  as  said  Tuthill  had  possession  of  said  land,  the 
plaintifi  Brown,  on  the  19th  of  May,  1847,  commenced 
an  action  of  right  against  him,  and  in  due  course  of  pro- 
ceeding thereon,  the  said  Tuthill  obtained  a  judgment  by 
which  the  plaintiff  was  expelled  and  for  ever  barred  from 
the  possession  and  employment  of  said  premises.  The 
declaration  then  avers,  that  the  land  from  which  the 
plaintiff  was  expelled  by  judgment  is  one  and  the  same 
twenty  acres  which  he  had  purchased  of  said  Tomlinson, 
and  then  sets  forth  the  failure  of  Tomlinson  to  warrant 


IOWA  CITY,  JUNE,  1850.  527 

Brown  v.  Tomlinson. 

and  defend  tlie  same,  and  alleges  that  lie  had  no  estate 
of  inheritance  in  fee  simple  therein,  and  that  he  had 
no  right,  power  or  authority  to  convey  the  same.  The 
declaration  contains  three  counts,  in  each  of  which  two 
or  three  breaches  are  assigned. 

The  defendant  craved  oyer  of  the  deed,  and  demm'red 
generally  to  the  declaration.  The  demurrer  was  sustained, 
and  in  this  it  is  contended  that  the  court  below  erred. 

There  is  much  in  the  declaration  which  must  be  regarded 
as  defectively  pleaded  ;  but  it  cannot  well  be  assumed  that 
all  the  covenants  and  breaches  are  ill  assigned. 

Without  inquiring  particularly  as  to  the  others,  we  think 
that  the  breaches  of  covenant  of  seizin  and  of  authority 
to  sell  and  convey  are  well  assigned,  and  the  same  may 
well  be  assumed  of  the  general  warranty  in  the  second 
count.  It  is  a  well  settled  rule  that  where  the  breaches 
in  any  count  are  well  assigned  in  a  declaration  of  cove- 
nant, a  general  demurrer  should  not  be  sustained. 

It  follows,  then,  that  if  the  averments  in  the  declara- 
tion are  warranted  by  the  legal  effects  and  force  of  the 
covenants  contained  in  the  deed,  that  the  court  below  im- 
properly decided  that  the  action  could  not  be  maintained. 
And  this  brings  us  to  the  principal  question  involved  in 
the  case.  Does  the  special  covenant  at  the  end  of  the  deed, 
in  which  the  grantor  warrants  against  all  claims  from  or 
under  him,  limit  and  explain  the  more  general  and  ex- 
tended warranties  which  are  covenanted  by  the  words 
"grant,  bargain  or  sell?"  The  decision  in  the  court  below 
shows  that  this  question  was  necessarily  decided  in  the 
affirmative.  Independent  of  the  statute,  and  under  the 
assumption  that  the  words  of  conveyance  contained  only 
implied  covenants,  incompatible  with  that  stipulated  by 
the  special  warranty,  the  correctness  of  that  decision  could 
not  be  controverted.  But  our  statute  regulating  convey- 
ances enters  largely  into  the  covenants  of  this  deed.  The 
sixth  section  of  that  act,  Rev.  Stat.,  204,  declares  that  the 
words  "grant,  bargain  and  sell,"  in  all  conveyances,  shall, 
unless  restrained  by  express  terms,  '' be 'construed  to  be 


52S  SUPREME  COUHT  CASES, 


Brown  v.  Tomlinson. 


the  following  express  covenants  :  1.  That  the  grantor  was, 
at  the  time  of  the  execution  of  such  conveyance,  seized  of 
an  indefeasible  estate  in  fee  simple  in  the  real  estate 
thereby  granted.  2.  That  such  real  estate  was,  at  the 
time  of  the  execution  of  such  conveyance,  free  from  in- 
cumbrance done  or  suffered  by  the  grantor  or  any  person 
claiming  under  him.  3.  For  further  assm^ance  of  such  real 
estate  to  be  made  by  the  grantor  and  his  heirs  to  the  grantee, 
his  heirs  and  assigns,  and  may  be  sued  uj^on  in  the  same 
manner  as  if  such  covenants  were  expressly  inserted  in 
the  conveyance."  The  construction  to  be  given  to  this  lan- 
guage is  obvious  ;  there  is  no  room  for  ambiguity  or  doubt. 
Those  words  of  conveyance  are  to  be  considered  as  some- 
thing more  than  an  implied  warranty;  they  are  to  be 
regarded  as  express  covenants,  and  are  to  have  the  same 
bearing  before  a  court,  the  same  legal  construction  as  they 
would  if  specially  set  forth  in  the  conveyance,  unless  re-, 
strained  by  express  terms.  A  restraint  by  implication  will 
not  suffice,  it  must  be  positive,  it  must  be  expressed ;  or, 
according  to  the  statute,  the  covenants  may  be  sued  upon 
in  the  same  manner  as  if  they  were  expressly  inserted  in 
the  conveyance.  Now  the  question  presents  itself.  Are  not 
those  covenants  of  seizin  and  of  freedom  from  incum- 
brance, as  expressed  by  the  words  of  conveyance,  perfectly 
compatible  with  the  special  warranty  against  the  claims 
of  all  persons  from  or  under  the  grantor  ?  Though  the 
latter  and  more  limited  covenant  may  be  mainly  com- 
prised within  the  former,  it  is  still  perfectly  reconcilable 
with  them,  and  as  they  are  in  no  way  restrained  or  excluded 
by  express  words  in  the  deed,  we  can  come  to  no  other 
conclusion  than  that  the  covenants  which  were  expressed 
by  virtue  of  the  statute  which  enters  into  the  conveyance 
should  co-exist  and  operate  with  that  which  is  especially 
set  forth  in  the  deed.  Had  the  parties  intended  to  limit 
or  restrain  the  warranty  to  the  latter  covenant,  such  inten- 
tion could  have  been  expressed  by  one  or  two  words  in 
the  instrument.  Those  words  cannot  be  supplied  by  in- 
tendment :  nor  upon  a  doubtful  point  should  the  construe- 


JOWA  CITY,  JUNE,  1850.  629 

Brown  v.  Tomlinson. 

tion  be  strongest  against  the  covenantee.  In  the  present 
deed,  then,  we  think  that  the  grantor  makes  three  express 
covenants  :  first,  of  seizure  in  fee  ;  second,  against  incum- 
brances ;  and  third,  against  his  own  acts.  We  think  that 
these  three  are  clearly  accordant ;  that  the  i)laintiff  is  en- 
titled to  recover  fur  a  breach  of  eitlier ;  and  that  at  least 
one  of  them  is  pleaded,  and  the  breach  sufficiently  as- 
signed in  the  declaration. 

But  it  is  urged  that  the  third  covenant  is  unnecessary, 
unless  applied  as  a  limit  to  the  first  and  second.  If  un- 
necessary, it  does  not  follow  that  it  should  be  adjudged 
inconsistent  with  the  antecedent  covenants,  or  that  they 
are  restrained  by  it,  when  no  word  or  term  is  expressed 
which  can  denote  such  intended  limitation. 

In  Hesse  v.  Stevenson,  3  Bos.  &  Pul.,  565,  where  a  cove- 
nant was  regarded  as  unnecessary,  it  was  not  therefore 
considered  inconsistent.  So  that  where  one  covenant 
stipulated  that  the  defendant  had  good  right  and  absolute 
authority  to  convey,  and  another  had  not  by  any  means 
forfeited  any  right  or  authority  he  ever  had  over  the  pro- 
perty in  question,  it  was  held  that  the  former  covenant 
was  not  restrained  by  the  latter.  And  in  Gainsforth 
v.  Griffith,  1  Saund,,  59,  it  was  held  that  the  general 
covenant  of. a  good  and  indefeasible  lease  was  not  re- 
strained by  one  for  quiet  enjoyment  restricted  to  acts  of 
the  covenantor.  In  this  case  the  rule  was  laid  down  that 
an  express  general  covenant  in  fact  cannot  be  restrained 
by  any  subsequent  covenant,  if  not  construed  as  a  part  of 
the  first  general  covenant.  Smith  v.  Compton,  3  Bar.  & 
Aid.,  189.  But  it  was  understood  that  a  particular  cove- 
nant in  fact  may  restrain  a  general  covenant  by  intend- 
ment of  law.  Appl}^  this  rule  to  the  present  case.  There 
is  no  connection  between  the  third  and  the  two  preced- 
ing covenants.  They  are  made  in  very  different  parts  of 
the  deed  without  any  connecting  word ;  and  by  statute 
the  covenants  contained  in  the  words  of  conveyance  are 
made  express  covenants  in  fact,  as  much  so  as  if  they  had 
been   expressly   mentioned,    and   therefore,   according   to 


530  SUPREME  COURT  CASES, 


Brown  v.  Tomlinson. 


Gainsfortk  v.  Griffitli^  cannot  be  qualified  by  the  conclud- 
ing covenant. 

In  Han-ell^.  Richards,  11  East.,  633,  it  was  beld  that 
the  generality  of  the  covenants  for  quiet  enjoyment  was 
not  restrained  by  the  qualified  covenants  for  good  title 
and  right  to  convey  for  anything  done  by  the  releasor  to 
the  contrary. 

In  Roebuck  v.  Duprey,  2  Ala.,  535,  it  was  held  that 
although  a  deed  contains  express  covenants,  yet  others 
not  inconsistent  with  them  may  be  implied  and  rendered 
operative.  The  same  doctrine  was  held  in  Gates  v.  Cald- 
well, 7  Mass.,  68.  If  an  implied  covenant  may  be  ren- 
dered operative  with  an  express  covenant  in  the  same 
deed,  is  there  not  even  more  reason  for  giving  force  to  two 
separate  express  covenants  where  the  one  does  not  conflict 
with  the  other  ? 

In  Pennsylvania,  with  a  statute  similar  to  ours,  and  in 
a  case  where  the  land  conveyed  had  been  incumbered 
previous  to  the  sale,  it  was  held  that  the  covenants  con- 
tained in  the  words  "grant,  bargain  and  sell"  were  not 
inconsistent  with,  nor  restrained  by  an  express  covenant 
of  special  warranty  ;  and  that  the  covenants  implied  by 
those  words  could  only  be  restrained  by  express  terms  of 
limitation.     Funk  v.  Voneida,  11  Serg.  &  R.,  109. 

And  in  Alexander  v.  Schneider,  10  Mis.,  460,  under  an 
act  identical  in  terms,  it  was  held  that  the  covenants  im- 
plied by  the  words  "  grant,  bargain  and  sell"  in  a  deed 
of  conveyance  are  separate  and  independent  of  each  other; 
and  that  a  general  warranty  is  only  limited  by  a  special 
one  where  the  two  are  inconsistent. 

In  the  absence  of  our  statute,  the  authority  and  argu- 
ments presented  by  counsel  for  the  defendant  in  error 
would  have  peculiar  force,  for  at  common  law  the  rule 
appears  to  be  well  settled  that  general  implied  covenants 
are  qualified  and  restrained  by  any  connecting  and  express 
covenant  of  a  more  limited  character,  especially  where  the 
two  are  not  reconcilable.  11  East.,  633;  15  ib.,  530,  8 
Mass.,  202  ;  7  John.,  258  ;   11  ib.,  122.     This  doctrine  no 


IOWA  CITY,  JUNE,  1850.  531 


Brown  v.  Tomlinson. 


doubt  originated  from  the  principle  that  general  terms  are 
limited  by  connecting  specifications  ;  and  as  an  applica- 
tion it  might  well  be  nrged  that  parties  having  entered 
into  express  agreements,  it  should  not  be  supposed  that 
they  intend  anything  more  by  their  general  language  than 
is  stipulated  in  express  covenants,  and  this  would  apj)ear 
especially  reasonable  if  the  one  could  not  operate  consis- 
tently with  the  other.  But  in  this  case  the  covenants  are 
not  inconsistent,  although  in  part  superfluous  ;  and  as  our 
prevailing  law,  the  statute  has  given  peculiar  effect  to  the 
words  "  grant,  bargain  and  sell,"  it  cannot  be  abated  by 
mere  implication,  nor  by  the  authority  of  decisions  made 
where  no  such  statute  was  in  force.  These  words  of  con- 
veyance create  something  more  than  implied  covenants, 
as  we  have  seen;  they  are  declared  to  be  express,  the  same 
as  if  specially  mentioned,  and  in  their  very  nature  they 
become  special  as  well  as  general  covenants,  {Gralz  v. 
Ewalt,  2  Binney,  95  ;)  and  they  are  to  have  full  effect, 
"  unless  restrained  by  express  terms  contained  in  such 
conveyance."  Such  is  the  explicit  direction  of  the  statute, 
and  the  parties  must  be  presumed  to  have  known  the  law, 
and  to  have  made  their  covenants  accordingly.  And  as 
the  covenantor  made  them  without  any  express  limitation, 
to  enforce  one  by  implication  would  do  violence  to  the 
intention  of  the  parties,  and  prevent  the  obvious  letter  of 
the  statute.  We  therefore  conclude  that  the  court  erred 
in  sustaining  the  demurrer. 

Judgment  reversed. 

Wm.  Smyth  and  L.  B.  Patterson^  for  plaintiff  in  error. 

J",  P,  Cook  and  W,  G.  Woodward,  for  defendant. 


532  SUPREME  COURT  CASES, 


Richmaa  v.  The  State. 


RICHMAlSr  V.  THE  STATE. 

The  question  was  put  to  a  witness  before  a  grand  jury,  "Do  j'ou  know  of 
any  person,  other  than  yourself,  being  engaged  in  gaming  ai  any  time 
within  two  years  in  the  county  of  Muscatine  ?"  held,  that  witness  could 
not  refuse  to  answer  on  the  ground  that  it  would  have  a  tendency  to  im- 
plicate himself. 

A  witness  cannot  be  justified  in  refusing  to  answer  questions  which  cannot, 
from  their  nature,  tend  to  criminate  him  ;  and  of  such  a  question-he  can- 
not be  tlie  judge. 

Where,  from  the  nature  of  the  question,  the  answer  would  inevitably  crim- 
inate the  witness,  he  is  sole  judge,  and  may  answer  or  refuse  to  answer 
the  question. 


Error  to  Muscatine  District  Court. 

Opinio7i  hy  Kinney,  J'.  In  tliis  case,  tlie  plaintiif  was 
called  before  the  grand  jury  as  a  witness,  and  the  follow- 
ing question  propounded  to  him  by  the  foreman :  "  Do 
you  know  of  any  person,  other  than  yourself,  being  en- 
gaged in  gaming  at  any  time  within  two  years  in  the 
county  of  Muscatine  ? "  Which  question  the  said  Rich- 
man  refused  to  answer,  alleging  that  to  answer  it  would 
have  a  tendency  to  implicate  himself.  Whereupon  the 
said  Richman  was  ordered  by  the  court  to  answer  said 
question,  and  refusing  to  do  so,  was  fined  $10  for  con- 
tempt, and  a  judgment  rendered  against  hjm  for  that 
amount,  with  leave  to  except  to  the  opinion  of  the  court 
in  requiring  him  to  answer  said  question,  and  to  the 
judgment  rendered  against  him ;  which  facts  are  certified 
to  this  court  by  agreement  for  a  decision. 

The  witness  should  have  answered  this  question.  An 
affirmative  or  negative  reply  could  not  in  any  manner  have 
criminated  him.  The  inquiry  does  not  embrace  all  the 
gaming  within  the  knowledge  of  the  witness,  but  onlj^ 
such  gaming  as  was  known  to  the  witness  in  which  he  was 
not  a  party.  If  the  witness  had  not  been  excepted  in  the 
interrogatory,  there  would  have  been  more  propriety  in 
his  refusing  to  answer,  as  he  might  have  been  a  party  him- 
self to  all  the  games  within  his  knowledge  in  the  coujity 


IOWA  CITY,  JUNE,  1850.  533 

Richman  v.  The  State. 

of  Muscatine  witliin  the  time  specified,  and  in  sucli  case 
an  affirmative  answer  would  have  a  tendency  to  implicate 
him.  But  clearly,  as  the  question  was  put,  he  could  not 
claim  the  benefit  of  the  rule.  The  rule  is,  that  a  witness 
cannot  be  compelled  to  answer  any  question,  the  answer- 
ing of  which  may  expose  or  tend  to  expose  him  to  a 
criminal  charge,  or  to  anj^kind  of  punishment.  2  Phillips 
on  Ev.,  417.  But  it  has  been,  and  still  is,  to  some  extent, 
a  controverted  question,  whether  the  witness  or  the  court 
is  to  be  the  judge  as  to  whether  the  answer  will  criminate 
the  witness  or  not.  In  the  authority  above  referred  to,  it 
is  said,  that  "it  is  the  province  of  the  court  to  decide 
whether  a  proposed  question  has  a  tendency  to  criminate 
the  witness,  and  it  is  the  duty  of  the  court,  while  it  pro- 
tects the  witness  in  the  due  exercise  of  his  privilege,  to 
take  care  that  he  does  not,  under  the  pretence  of  defending 
himself,  screen  others  from  justice,  or  withhold  evidence 
wdiich  he  might  safely  give.  The  court  should  be  satisfied 
that  the  witness  is  acting  an  honest  part,  and  that  he  may 
incur  danger  by  answering;  when  satisfied  of  this,  it  will 
allow  the  privilege.  To  force  him  to  reveal  particulars 
might  lead  to  a  prosecution  against  which  he  has  a  right 
to  protect  himself."  In  conformity  with  this  doctrine  was 
the  general  rule,  as  laid  down  in  the  celebrated  case  of 
United  States  v.  Burr,  1  Rob.,  215,  in  which  the  court 
held  that  it  was  "  the  province  of  the  court  to  judge  whether 
any  direct  answer  to  the  question  proposed  will  furnish  evi- 
dence against  the  witness."  But  the  chief  justice  qualifies 
the  general  rule  by  saying,  that  if  the  answer  may  disclose 
a  fact  which  forms  a  necessary  and  essential  link  in  the 
chain  of  testimony  whicli  would  be  sufficient  to  convict 
the  witness  of  any  crime,  he  is  not  bound  to  answer  it. 
"  In  such  case,  the  witness  must  himself  judge  what 
his  answer  will  be,  and  if  he  say  on  oath  that  he  cannot 
answer  without  accusing  himself,  he  cannot  be  compelled 
to  answer." 

We  understand  from  this  and  other  decisions  on  this 
subject,  that  in  relation  to  the  privilege  of  witnesses  it  is 


534  SUPREME  COURT  CASES, 

Richman  v.  The  State. 

necessary  to  avoid  these  two  extremes:  1.  That  of  per- 
mitting  the  witness  to  protect  himself  by  his  privilege  by 
refusing  to  answer  questions  which  cannot,  from  the 
nature  of  the  answers  sought,  criminate  him  ;  2.  That  of 
compelling  him  to  answer,  when,  from  the  nature  of  the 
questions,  the  answer  would  inevitably  criminate  him. 
In  the  first,  the  court  must  be  judge  and  compel  the 
answer.  In  the  second,  the  witness  is  sole  judge,  and 
may  answer  or  refuse  as  he  sees  proper. 

When  it  is  evident  to  the  mind  of  the  court  that  the 
answer  cannot  accuse  the  witness,  the  court  should  require 
him  to  respond  to  the  interrogatory.  If  this  were  not  'Ca.Q, 
case,  it  would  be  in  the  power  of  the  witness,  when  called 
upon  to  give  testimony  in  a  criminal  case,  to  refuse  to  do 
so.  If  he  is  to  be  sole  judge  whether  the  answer  would 
implicate  him  by  thus  answering,  it  would  be  impossible 
to  elicit  any  testimony.  Perjury  could  not  only  be  com- 
mitted with  impunity,  by  stating  that  the  answer  would 
criminate  him,  but  the  guilty  would  be  screened  from 
merited  punishment.  We  cannot  sanction  a  rule  fraught 
with  such  dangerous  consequences.  The  dh'ect  tendency  of 
such  a  rule  would  be  to  suppress  truth,  and  prevent  the 
administration  of  justice.  Therefore,  we  think  the  better 
and  safer  rule  to  be  that  of  compelling  the  witness  to 
answer,  when  it  is  apparent  to  the  court  that  such  answer 
would  not  interfere  with  his  legal  privilege.  In  this  case 
it  was  evident,  from  the  scope  of  the  question,  that  an  an- 
swer could  not  possibly  infringe  upon  this  right,  and  yet  the 
witness  makes  himself  the  judge,  and  refuses  the  answer. 

The  position  of  the  witness  furnishes  a  familiar  illustra- 
tion of  the  evil  consequences  which  would  result  from  the 
enforcement  of  such  a  rule  as  he  has  contended  for  in  the 
argument,  and  a  most  potent  reason  for  the  distinction 
which  we  have  made. 

Judgment  affirmed. 

J.  Scott  Richman^  pro  se. 

D.  C.  CloucL  for  the  state. 


IOWA  CITY,  JUNE,  1850.  635 


Abbee  v.  Hig.srins. 


ABBEE  V.  HIGGINS. 

A  motion  supported  by  affidavit  is  no  part  of  the  record  unless  made  so  by 
bill  of  exceptions. 

Where  it  appears  by  the  returns  of  the  sheriff  that  a  writ  was  served  in  the 
manner  provided  by  statute,  it  is  good,  even  if  it  should  appear  that  the 
defendant  had  been  three  months  absent  from  his  dwelling. 

Ereor  to  Linn  District  Court. 

Opinion  hy  GtREENE,  J.  Higgins  sued  AbLee  in  an 
action  of  assumpsit  on  a  promissory  note.  It  appears  by 
the  sberiif's  returns  that  the  defendant  could  not  be  found 
in  the  county;  but  that  he  left  an  attested  copy  of  the  writ 
*'  at  the  dwelling  house  or  last  place  of  residence  of  said 
defendant,  in  said  county,  with  Mary  Abbee,  the  wife  of 
said  defendant,  she  being  a  person  of  the  said  defendant's 
family,  upwards  of  fifteen  years  of  age,  and  stated  the 
contents  thereof  to  said  person."  The  defendant  appeared 
specially  by  attorney,  and  filed  a  motion  to  dismiss  the 
writ  for  the  want  of  service,  averring  in  the  motion  that 
Abbee  is  not  a  resident  of  the  county,  nor  of  the  lioiise 
described  in  the  return ;  that  he  had  been  absent  three 
months  at  least  on  an  expedition  to  California,  where  he 
expected  to  remain  two  or  three  years.  This  motion  was 
supported  by  the  affidavit  of  defendant's  attorney,  and  over- 
ruled by  the  court.  The  cause  then  came  on  for  trial ;  the 
defendant  failed  to  appear,  and  judgment  was  rendered 
against  him  by  default  for  the  balance  due  upon  the  note. 

It  is  now  objected  that  the  court  below  had  no  jurisdic- 
tion over  the  person  of  the  defendant  to  justify  the  judg- 
ment. The  record  in  the  case  shows  no  foundation  for 
this  objection.  The  motion  made  by  defendant's  counsel 
is  no  part  of  the  record.  It  is  not  made  so  by  bill  of  ex- 
ceptions or  otherM'ise.  The  mere  act  of  filing  a  motion  in 
a  case  is  not  sufficient  to  make  it  a  part  of  the  record. 
It  was  held  by  Cook  v.  Steuben  Co.  Bank,  1  G.  Greene, 


536  SUPREME  COURT  CASES, 

Preston  v.  Daniels. 

447,  that  a  motion  is  no  part  of  the  record  unless  made  so 
by  bill  of  exceptions. 

In  this  case,  after  securing  the  action  of  the  court  upon 
his  motion,  the  attorney  withdrew  without  taking  any 
exception  to  the  decision,  thus  creating  the  presumption 
that  he  acquiesced  in  the  decision,  and  having  no  further 
defence  to  the  action,  he  suffered  judgment  to  go  by 
default. 

But  even  if  the  motion  was  properly  before  us,  we 
should  not  be  able  to  disturb  the  judgment.  The  return 
of  the  sheriff  shows  that  the  writ  was  properly  served  by 
leaving  an  attested  copy  at  the  dwelling  house  or  last  place 
of  residence,  and  with  tlie  wife  of  defendant,  stating  the 
contents  to  her.  The  facts  stated  in  this  return  are  not 
controverted  by  the  motion.  If  the  defendant  had  been 
absent  three  months,  if  he  had  started  to  California  with 
the  intention  of  remaining  there  two  or  three  years,  but 
still  had  left  his  family,  his  home,  and  his  property  in  the 
county,  it  would  not  show  an  abandonment  of  his  resi- 
dence, nor  affect  the  service  of  a  writ,  when  it  appears  to 
have  been  made  in  the  manner  provided  by  statute.  • 

Judgment  affii-med. 

N.  W.  Isbell,  for  plaintiff  in  error, 

WvL  Smyth,  for  defendant. 


PRESTON  et  al.  v.  DANIELS  et  al. 

If  it  appears  by  a  bill  in  equity  that  complainants  had  a  plain  and  adeqnat» 

remedy  at  law,  it  is  good  ground  for  demurrer. 
Where  funds  collected  by  a  sheriff  on  fi.  fa.  were  demanded  by  D.  and  N., 

and  also  by  P.  and  H.,  and  each  party  showed  an  equal  right  to  them,  it 

was  held  D.  and  N.  iiad  not  a  plain  and  adequate  remedy  at  law,  and  that 

they  might  proceed  in  equity. 
Where,  from  any  defect  in  the  common  law,  want  of  foresight  in  the  parties. 


IOWA  CITY,  JUNE,  1850.  537 


Preston  v.  Daniels. 


or  other  mistake  or  accident,  there  would  be  a  failure  of  justice,  it  is  the 
duty  of  a  court  of  equity  to  interfere  and  supply  the  defect  or  furnish  the 
remedy. 
The  supreme  court  is  not  authorized  to  grant  a  lien  upon  a  judgment  for  an 
attorney's  fees,  as  it  would  he  an  exercise  of  original  jurisdiction. 


In  Equity.     Appeal  from  Linn  District  Court. 

Opinion  by  Greene,  J.  A.  Daniels  and  C.  Nye  tiled 
their  bill,  in  which  the  following  facts  are  stated  :  March 
18,  184G,  E.  T.  Lewis  obtained  judgment  against  Levi 
Lewis,  in  the  district  coui't  of  Linn  county,  for  the  sum 
of  |143.39  cents,  and  on  the  23d  of  the  same  month, 
assigned  $52  of  the  judgment  to  Preston  &  Hastings. 
July  21,  1846,  E.  T.  Lewis  assigned  the  balance  of 
the  judgment  to  the  complainants,  who  filed  the  assio-n- 
ment  in  the  clerk's  office.  In  April  of  that  year,  Levi 
Lewis  took  the  judgment  by  -writ  of  error  to  the  supreme 
court,  where,  in  July,  1847,  it  was  affirmed.  Shortly 
after,  a  writ  of  fi.  fa.  was  issued  from  the  supreme 
court  to  the  sheriff  of  Linn  county,  who  collected  the 
money,  paid  $56.82  over  to  Preston  &  Hastings,  and 
retained  the  balance  in  his  hands.  This  balance  of 
$100.19  was  demanded  of  the  sheriff  by  complainants 
under  the  assignment  which  had  been  made  to  them, 
but  the  sheriff  refused  to  pay  the  same  over  to  them 
on  the  pretence  that  Preston  &  Hastings  had  a  lien  of 
$90  on  the  amount,  for  their  fees  as  attorney  for  E.  T. 
Lewis. 

Complainants  charge  that  the  $52  assigned  by  Lewis 
to  Preston  &  Hastings  was  the  only  lien  they  had  acquired 
for  their  professional  services  ;  that  the  $90  were  neither 
claimed  nor  acquired  until  after  judgment  in  the  supreme 
court ;  that  Preston  &  Hastings  had  notice  of  the  assign- 
ment to  them  ;  and  the  claim  of  $90  was  intended  to  de- 
feat and  defraud  them  ;  that  E.  T.  Lewis  was  insolvent, 
and  that  they  had  no  remedy  at  law.  The  bill  concludes 
with  a  prayer,  that  the  pretended  lien  be  adjudged  inopera- 
tive, and  that  a  writ  of  injunction  may  issue  to  restrain  the 
Vol.  IL  "  ':.:> 


538  SUPREME  COURT  CASES, 

Preston  v.  Daniels. 

sheriff  from  paying  tlie  money  over  to  any  other  person 
than  themselves.  E.  T.  Lewis,  I.  M.  Preston,  S.  C.  Hast- 
ings and  A.  Harlan,  the  sheriff,  were  made  defendants. 

Preston  &  Hastings  demurred  to  the  bill  on  the  ground: 
1.  That  E.  T.  Lewis  should  be  a  plaintiff,  if  a  party 
at  all  to  the  bill ;  2.  That  the  complainants  had  an 
adequate  remedy  at  law.  Thereupon,  Lewis  filed  a  dis- 
claimer of  all  interest.  The  demurrer  was  overruled,  and 
the  bill  dismissed  as  to  Lewis. 

Preston  &  Hastings'  answer  admits  the  judgment,  as- 
signments, &c. ;  that  the  $52  assigned  to  them  was  for 
professional  services ;  that  the  $90  claim  was  partly  for 
other  services  than  those  rendered  in  the  suit  against  Levi 
Lewis  ;  but  claims  that  the  $90  was  a  lien  allowed  by  the 
supreme  court ;  that  their  claim  for  fees  was  in  accordance 
to  an  agreement  between  them  and  E.  T.  Lewis,  at  the 
time  he  placed  his  claim  against  Levi  Lewis  in  their  hands 
for  collection ;  that  at  the  time  Preston  received  notice  of 
the  assignment  to  complainants,  he  gave  them  notice  of 
his  and  Hastings'  claim  for  additional  fees,  upon  the  judg- 
ment ;  and  insists  that  said  assignment  was  not  in  good 
faith,  and  that  if  any  consideration  passed,  it  was  for  a 
pre-existing  debt,  which  was  not  cancelled  by  the  assign- 
ment. Exceptions  were  taken  to  the  separate  answer  of 
I.  M.  Preston,  and  thereupon  he  filed  an  amended  answer, 
in  which  he  states  that  the  services  for  which  $90  are 
claimed  were  rendered  in  suits  prior  to  April  1,  1847. 
Upon  the  bill  and  answers  the  court  decreed  that  the  sup- 
posed lien  of  Preston  &  Hastings  be  inoperative  as  against 
the  assignment  to  the  complainants,  and  that  the  sheriff 
should  pay  the  money  over  to  them. 

1.  It  is  objected,  that  the  demurrer  to  the  bill  should 
have  been  sustained,  on  the  ground  that  complainants  had 
a  plain  and  adequate  remed}''  at  law.  If  complainants 
had  an  adequate  remedy  at  law,  it  is  clear  that  the  de- 
murrer should  have  been  sustained,  and  the  bill  dismissed. 
But  we  think  that  the  fiicts  stated  in  the  bill  show  no 
Bucli  legal  remedy.     Tlie  money  was  in  the  hands  of  the 


IOWA  CITY,  JUNE,  1850.  539 

Preston  v.  Daniels. 

sheriff,  and  demanded  from  him  by  two  different  parties, 
both  of  whom  showed  prima  facie  an  equal  right  to  it ; 
and  therefore  the  sheriff  was  justified  in  not  paying  the 
money  over  to  either  of  them.  The  sheriff  was  not  in  de- 
fault. He  was  not  required  by  the  process  upon  which  he 
had  collected  the  money,  to  pay  it  over  to  complainants  ; 
nor  does  it  a23pear  that  the  time  had  expired  within  which 
he  was  required  by  law  to  make  return  of  the  ji.  fa.  to 
the  supreme  court.  As  the  sheriff  had  not  neglected  his 
duty  in  the  premises,  the  complainants  had  no  action  at 
law  against  him  ;  and  as  Preston  &  Hastings  had  not  ob- 
tained possession  of  the  funds  claimed  by  complainants, 
they  had  no  remedy  against  them. 

Counsel  have  failed  to  point  out  the  plain  and  adequate 
remedy  at  law  which  complainants  had  for  this  money. 
We  are  told  that  they  might  have  had  their  remedy  at 
law  against  Preston  &  Hastings,  if  the  sheriff  had  paid 
the  money  over  to  them.  If  this  proposition  was  correct, 
it  could  not  add  force  to  the  demurrer  in  the  present  case. 
It  by  no  means  follows  that  they  had  a  plain  and  adequate 
remedy  at  law,  because  they  might  have  had  such  a  remedy 
if  certain  things  had  taken  place.  As  the  contingency 
did  not  happen,  it  follows  tliat  complainants  did  not 
acquire  the  remedy  which  it  is  claimed  they  had. 

It  was  not  necessary  for  them  to  lay  by  and  lose  the 
use  of  their  money,  upon  the  supposition  that  some  event 
might  happen  which  might  enable  them  to  proceed  by 
suits  at  law.  A  court  of  chancery  will  not  requii'e  a  party 
to  defer  his  rights  to  the  supposition  that  a  contingency 
may  liapjien  which  will  give  him  a  remedy  at  law.  The 
rule  is  laid  down  by  Chancellor  Walworth,  and  is  doubt- 
less approved  by  all  equity  tribunals,  that  where,  from 
any  defect  of  the  common  law,  want  of  foresight  in  the 
parties,  or  other  mistake  or  accident,  there  would  be  a 
failure  of  justice,  it  is  the  duty  of  a  court  of  equity  to  in- 
terfere and  supply  the  defect  or  furnish  the  remedy. 
Quick  v.  Stwjvesant^  2  Paige,  84.  The  bill  in  the  case 
at  bar   comes   with   obvious   propriety   under  this   rule. 


540  SUPREME  COURT  CASES, 

Preston  v.  Daniels. 

Again,  it  was  held  in  Winthrop  v.  Lane,  3  Desau.,  323, 
that  the  general  powers  of  a  court  of  equity  are  very  great ; 
that  it  is  assistant  to  the  courts  of  law  in  counteracting 
fraudulent  judgments,  or  when  in  conscience  and  equity 
the  plaintiff  ought  not  to  avail  himself  of  a  judgment  at 
law.  And  in  Watson  v.  Palmer,  5  Ark.,  501,  it  was  held 
that  equity  will  relieve  from  a  judgment  at  law,  when  the 
party  was  prevented  by  unavoidable  necessity  from  ap- 
pearing or  making  his  defence.  The  lien  allowed  to  Pres- 
ton &  Hastings  by  the  supreme  court,  in  the  present  case, 
was  upon  their  ex  parte  apj)lication,  without  notice  to 
the  complainants,  and  without  their  knowledge.  In  con- 
science and  equity,  according  to  Winthrop  v.  Lane,  they 
ought  not  to  avail  themselves  of  the  benefit  of  that  lien  to 
the  prejudice  of  complainant's  previously  acquired  right. 
And  according  to  Watson  v.  Palmer,  equity  ought  to  afford 
them  relief,  because,  from  a  want  of  notice,  they  were  not 
permitted  to  appear  and  defend  against  the  application. 
Again,  whenever  the  remedy  at  law  is  defective,  doubt- 
ful or.difficult,  a  court  of  equity  has  jurisdiction.  Seymour 
v.  Delaney,  3  Cow,,  445;  Amer.  Ln.  Co.  v.  Fisk,  1  Paige, 
90 ;  League  v.  Russell,  2  Stewart,  420. 

Upon  the  first  point  we  conclude,  then,  that  the  bill 
presents  a  case  in  which  relief  may  be  given  in  a  court  of 
equity,  and  that  the  demurrer  was  correctly  overruled. 

2.  As  an  objection  to  the  decree,  it  is  urged  that  the 
right  of  Preston  &  Hastings  to  a  specific  lien  was  res  ad- 
juclicata ;  that  the  allowance  was  made  to  attorneys  aa 
officers  of  the  court,  and  is  obligatory. 

If  the  matter  had  been  within  the  jurisdiction  of  the 
supreme  court,  and  if  all  the  parties  affected  by  the  lien 
had  been  properly  notified  of  the  proceeding,  it  might 
with  propriety  be  regarded  as  res  adjudicata.  But  as  the 
powers  of  this  court  are  merely  corrective  and  appellate,  as 
they  comprise  no  original  jurisdiction,  om*  authority  to 
grant  an  original  application  for  a  lien  ma}""  'well  be  ques- 
tioned. Such  an  act  cannot  but  be  regarded  as  an  as- 
sumption of  original  power,  unauthorized  by  the  constitu- 


IOWA  CITY,  JUNE,  1850.  541 

Preston  v.  Daniels. 

tion  and  laws  of  the  state.  By  such  an  application  a  new 
issue  was  raised,  new  parties  were  substituted,  and  a  sub- 
ject matter  not  before  adjudicated  was  brought  before  this 
court.  The  motion  was  hastily  presented,  no  one  appeared 
to  object,  and  without  sufficient  consideration  the  lien  was 
granted.  We  are  now  satisfied  that  this  proceeding  was 
extrajudicial,  that  the  lien  was  coram  non  jiidice  and  void. 
The  court  below,  then,  did  not  err  in  declaring  the  lien  to 
be  inoperative. 

The  fact  that  the  attorneys  were  officers  of  this  court  can- 
not change  the  case ;  it  cannot  enlarge  our  jurisdiction. 

An  attorney  is  doubtless  entitled  to  a  lien  for  his  ser- 
vices upon  a  judgment  obtained  by  him  for  his  client ; 
but  that  lien  must  be  secured  before  a  court  of  original 
iurisdiction. 

If  the  lien  is  sought  for  services  rendered  in  the  supreme 
court,  it  can  only  be  secured  by  having  the  judgment  re- 
turned to  the  district  court. 

As  this  question  of  jurisdiction  justifies  the  decision  of 
the  court  below,  it  is  not  necessary  to  inquire  into  the 
merits  of  the  lien. 

Decree  affirmed. 

S.  Whicker  and  /.  M.  Preston^  for  appellants. 

N,  W.  Isbell  and  Wm,  Smyth,  for  appellees. 


CASES  IN  UW  AND  EQUITY, 


DETERMINED  IN  THB 


SUPREME  COURT  OF  THE  STATE  OF  IOWA, 

DUBUQUE,  JULY  TERM,  A.D.  1850, 
In  the  Fourth  Year  of  the  State. 


Hon.  JOSEPH  WILLIAMS,  Chief  Justice, 
Hon.  JOHN  F.  KINNEY,    )  t    ,  ^ 
Hon.  GEO.  GREENE,  \  •^"»^«* 


BUELERSON  v.  TEEPLE  et  oL 

A  fence  built  upon  public  land,  even  by  mistake,  passes  with  the  freehold  to 
the  purchaser  from  the  government ;  and  if  such  fence  is  detached  from 
the  realty  by  a  wrong  doer,  the  purchaser's  right  to  it  is  not  divested. 

A  duplicate  receipt  or  certificate  from  the  receiver  or  register  of  a  land  office 
is  made  by  statute  prima  facie  evidence  of  title  in  actions  of  trespass, 
right,  &c. 

Error  to  Jackson  District  Court. 

Opinion  hy  Kinney,  J.  Bui'lerson  sued  the  defendants 
in  error  before  a  justice  of  the  peace,  in  an  action  of  tres- 
pass, for  entering  upon  his  premises,  and  carrying  off  one 


DUBUQUE,  JULY,  1850.  643 

Burlerson  v.  Teeple. 

hundred  and  seventy-five  rods  of  rail  fence,  and  for 
taking  away  five  thousand  rails,  to  the  damage  of  the 
phiintiff  of  $100.  The  defendants  recovered  a  verdict, 
and  the  plaintiff  appealed.  Upon  the  trial  in  the  district 
court,  the  plaintiff  gave  in  evidence  tlie  original  duplicate 
receipt  from  the  register  of  the  land  office,  bearing  date 
the  7th  day  of  January,  1850,  as  evidence  of  title  and. 
possession  of  the  locus  in  quo.  The  plaintiff  also  proved 
that  the  fence  was  standing  on  the  premises  at  the  time 
of  the  entry,  and  that  it  was  a  stake  and  rider  fence, 
and  standing  until  the  day  before  the  rails  were  re- 
moved. The  testimony  also  showed  that  the  rails  were 
in  piles  when  the  defendant  took  them,  and  did  not  show 
that  the  defendant  meddled  with  the  rails  while  in  the 
fence. 

The  testimony  tended  to  show  that  the  fence  was  on  the 
premises  of  the  plaintiff,  from  ten  to  twenty  rods  distant 
from  the  south  line  of  Burlerson's  land.  That  the  fence 
was  put  there  by  defendants  some  seven  years  before  the 
commencement  of  the  suit,  and  at  that  time  they  supjiosed 
it  was  on  the  line  between  the  locus  in  quo  and  their  own 
land ;  also  that  the  locus  in  quo,  at  the  time  the  fence  was 
built,  was  government  land,  and  there  was  no  evidence 
that  Burlerson  ever  claimed  the  premises  previous  to  his 
entry.  The  defendants,  among  other  things,  asked  the 
court  to  instruct  the  jury,  that  if  the  jury  believe  that  the 
rails  were  originally  the  property  of  the  defendants,  the 
plaintiff  cannot  recover  unless  there  is  evidence  that  they 
touched  the  rails  in  the  fence,  which  was  given  by  the 
court,  and  excepted  to  by  the  plaintiff".  The  court  also 
charged  that,  if  the  jury  believed,  from  the  evidence,  that 
the  fence,  of  which  these  rails  were  made,  was  made  by 
the  defendants,  supposing  they  were  on  the  line  of  their 
own  land ;  that  if  it  turned  out  that  they  were  on  the  land 
of  the  plaintiff",  or  which  the  plaintiff  purchased,  the  de- 
fendants had  a  right  to  go  and  take  them  as  their  own, 
wiihout  being  liable  to  an  action  of  trespass  to  Burlerson, 
notwithstanding  the  general  principle  of  law,  that  whoever 


544  SUPREME  COURT  CASES, 

Burlerson  v.  Teeple. 


owns  the  land  owns  the  houses,  fences,  and  everything 
upon  it.     To  which  charge  the  plaintiff  excepted. 

The  plaintiff  asked  the  court  to  instruct  the  jury,  that  if 
the  jury  find  that  the  fence  stood  some  fifteen  rods  from 
the  north  line  of  plaintiff's  land,  that  he  will  be  entitled 
to  the  fair  value  of  the  rails,  even  though  the  defendants 
may  have  supposed,  at  the  time  they  built  the  fence,  it 
was  on  the  south  line,  which  instruction  the  court  refused. 
Whereupon  the  plaintiff  excepted,  &c.  This  constitutes 
the  testimony  and  material  part  of  the  instructions  given 
and  refused,  as  set  out  in  the  bill  of  exceptions,  and  upon 
which  the  jmy  found  a  verdict  in  favor  of  the  defendants. 
Giving  the  instructions  asked  by  the  defendants,  and  re- 
fusing those  of  the  plaintiff,  are  assigned  for  error.  The 
question  presented  by  the  evidence  and  the  instructions, 
when  narrowed  down,  is  simply  this :  Did  Burlerson,  by 
his  entry  of  the  land,  acquire  title  to  the  fence  upon  it, 
although  that  fence  was  placed  there  by  the  defendants 
through  mistake,  supposing  at  the  time  it  was  made  to  be 
upon  the  line  of  their  own  land,  and  put  there  for  the  pur- 
pose of  a  line  fence  ?  The  court  instructed  the  jury  that 
the  defendants  had  a  right  to  remove  the  rails.  This  was 
error.  Nor  is  it  material  whether  the  rails^  at  the  time 
they  were  removed,  were  in  a  fence  or  in  piles.  The  tes- 
timony shows  that  at  the  time  the  land  was  entered  by 
Burlerson,  the  fence  was  standing,  and  as  such  it  was  at- 
tached to,  and  constituted  part  of,  the  freehold,  and  became 
the  property  of  the  plaintiff  as  much  as  a  house,  or  any 
other  permanent  fixture  upon  the  land.  "  It  is  a  general 
principle,  that  all  permanent  buildings  follow  the  tenure 
of  the  soil  on  which  they  are  erected.  The  fence  which 
encloses  a  field  is  within  the  doctrine.  It  is  necessary  for 
the  use  and  occupation  of  the  ground,  and  cannot  be  re- 
moved without  injury  to  the  freehold.  On  alienation  it 
passes  with  the  soil."  Seymour  v.  WaUon^  5  Blackf., 
555;  4  Kent  Com.,  342;  3  Bacon  Abt.,  63. 

Burlerson  having  become  the  owner  of  all  the  improve- 
ments by  virtue  of  his  purchase,  the  act  of  a  wrong  doer. 


DUBUQUE,  JULY,  1850.  645 


Burlerson  v.  Teeple. 


in  detaching  from  the  realty  the  fence,  would  not  divest 
him  of  his  title  to  it. 

By  om-  statute,  the  duplicate  receipt  of  the  receiver,  or 
the  certificates  of  the  register,  is  prima  facie  evidence  of 
title  or  the  right  of  possession  in  any  action  of  trespass 
quare  clausum  J  regit,  action  of  right,  or  other  action  of 
law  or  equity ;  and  such  certificate  or  receipt  is  to  have  the 
same  effect  in  law  in  establishing  possession  as  a  deed  of 
conveyance  or  a  patent.     Rev.  Stat.,  p.  387,  §  1. 

The  plaintiff,  then,  upon  introducing  his  register's  re- 
ceipt, exhibited,  for  the  purpose  of  maintaining  the  action, 
a  good  title  to  the  land  upon  which  the  fence  was  located, 
and  consequently  a  right  to  have  and  enjoy  all  the  fenc- 
ing upon  tlie  land  covered  by  the  register's  receipt.     Nor 
would  the  fact  of  the  defendants  having  made  rails  and 
erected  the  fence  upon  the  land  supposed  to  be  their  own, 
but  which  upon  survey  is  found  to  belong  to  another, 
change  the  rights  of  the  parties.     Although  in  a  new 
country  like  Iowa,  where  claims  are  made  and  fences  built 
in  many  instances  before  the  land  is  surveyed,  the  princi- 
ple of  law,  that  where  a  man  enters  land,  he  enters  all  the 
improvements  upon  it,  may  and  often  will  operate  oppres- 
sively ;  still,  a  doctrine  so  well  settled  in  the  books  can- 
not be  made  to  yield  to  particular  emergencies.     The  rule 
applies  with  rigor  to  those  who  honestly  supposed  they 
were  building  a  fence  upon  their  own  land,  which,  how- 
ever turns  out  upon  survey  to  have  been  government  land. 
But  the  princiiile  involved  in  this  case  has  been  well  set- 
tled by  the  authorities.     In  the  case  of  Goodrich  v.  Jones, 
2  Hill,  142,  it  was  held  that  fencing  materials  on  a  farm, 
which  had  been  used  as  part  of  the  fence,  but  temporarily 
detached  without  any  intention  of  diverting  them  from 
their  use  as  such,  were  a  part  of  the  freehold,  and  passed 
by  a  conveyance  of  the  farm  to  the  purchaser. 

In  the  case  of  Blair  v.  Worley,  1  Scam.,  173,  although 
there  was  a  statute  giving  the  right  to  remove  fences 
made  by  mistake  upon  the  land  of  others,  yet  the  court 
decide  that  the  statute  has  no  relation  to  a  case  where  a 


546  SUPREME  COUHT  CASES, 

Burlerson  v.  Teeple. 

fence  is  erected  upon  lands  of  the  United  States  or  of  tlie 
state. 

The  court  also  decide  that  the  purchaser  of  land  from 
the  government  of  the  United  States  acquires  all  the  im- 
provements made  upon  it  anterior  to  his  pmchase.  In 
that  case  Worley  erected  a  fence  upon  certain  public 
lands.  Blair  afterwards  purchased  the  same,  and  took 
and  removed  the  fence.  Worley  sued  him  in  trespass. 
It  was  claimed  that  as  Worley  erected  the  fence  on  the 
tract  described  through  mistake^  believing  it  to  be  on  the 
adjoining  tract,  of  which  he  was  the  proprietor,  he  was  en- 
titled to  the  rails.  This  position  was  sustained  by  the 
court  below,  but  the  decision  was  reversed  by  the  supreme 
court. 

A  case  entirely  analogous  to  the  one  at  bar  is  found  in 
Seymour  v.  Watson,  5  Blackf.,  555.  The  parties  were  pro- 
prietors of  adjoining  fields.  The  defendants  purchased 
the  land  of  the  United  States,  and  before  his  lines  were 
run,  and  while  plaintiff's  land  was  vacant,  enclosed  his 
field  with  a  rail  fence  made  with  his  own  rails,  and  in 
doing  so  he  placed  a  part  of  the  fence  on  the  land  of  the 
United  States,  which  the  plaintiff  afterwards  purchased. 
The  defendant  moved  the  fence  from  the  land  of  the  plain- 
tiff to  his  own  land.  The  plaintiff  sued  and  recovered. 
The  court  say,  ''  that  the  defendant  having  placed  the  fence 
in  question  on  the  land  of  another  by  mistake,  does  not 
alter  the  matter;  it  was  no  less  a  part  of  the  freehold  for  that 
reason.  Being  the  property  of  the  United  States,  in  conse- 
quence of  its  annexation  to  the  soil,  it  passed  to  the  plaintiff 
by  virtue  of  his  purchase  of  the  land  on  which  it  stood." 

As  these  authorities  are  not  questioned,  they  must  be 
decisive  of  the  case  before  us.  The  authority  cited  by- 
counsel  for  defendant  in  error,  in  case  of  Wincher  v. 
Shrewsbury,  found  in  2  Scam.,  283,  is  not  in  point.  In 
that  case  the  plaintiff  had  made  from  timber  growing  on 
public  land  a  quantity  of  rails,  and  left  them  piled  upon 
the  land.  The  defendant  afterwards  purchased  the  land 
of  the  government,  and  converted  the  rails  to  his  own  use. 


DUBUQUE,  JULY,  1850.  547 


Wright  V,  Watkins. 


It  was  held  that  they  did  not  pass  with  the  land.  The 
court  decide  that  as  the  trespass  was  committed  anterior 
to  the  purchase,  that  the  government  was  entitled  to  an 
action  either  in  trespass  or  trover,  and  that  the  rails,  when 
not  put  into  a  fence  nor  intended  for  that  purpose,  would 
not  pass  by  alienation. 

From  the  general  and  well  established  principle  of  law 
that  a  fence  attaches  to  and  becomes  a  part  of  the  freehold 
when  erected,  and  follows  the  tenure  of  the  soO,  (and 
although  built  upon  the  land  of  another  by  mistake,  the  rule 
remains  the  same,)  it  follows,  as  a  necessary  result,  that  the 
plaintiff  in  this  ce,se,  when  he  purchased  the  land  upon 
which  the  fence  was  situated,  became  the  owner  thereof, 
and  the  defendants  were  trespassers  in  removing  it,  or 
the  rails  which  composed  the  fence  at  the  time  of  the 
pm'chase. 

Judgment  reversed. 


P.  f  J.  M.  Smith,  for  plaintiff  in  error. 
L.  Clarkj  for  defendants. 


WRIGHT  et  al.  v.  WATKINS. 

A  decree  in  bankruptcy,  under  the  general  law  of  Congress,  ordered  by  a 

court  of  competent  general  jurisdiction,  cannot  be  collaterally  drawn  in 

question. 
The  territorial  district  courts  were  invested  with  full  power  to  adjudicate 

causes  in  bankruptcy. 
Nothing,'  should  be  presumed  against  the  authority  or  proceedings  of  a  court 

of  general  jurisdiction. 

Ekror  to  Jackson  District  Court. 

Opinion  by  Greene,  J.    An  action  of  assumpsit  on  a  pro- 
missory note  by  Wright  &  Jackson  o^ainst  Wm,  Watkins. 


548  SUPREME  COURT  CASES, 


Wrisrht  v.  Watkins. 


I 


The  defendant  pleaded  bankruptcy  under  the  general  law. 
To  this  plea  there  was  a  special  replication  in  confession 
and  avoidance,  averring  that  the  petition,  schedule  and 
affidavit  in  the  bankrupt  proceedings  were  so  defective 
that  the  court  could  not  entertain  jurisdiction  upon  them. 
These  j^apers  appear  to  have  been  drawn  up  in  the  usual 
form  adopted  by  our  territorial  courts  in  bankrupt  pro- 
ceedings, it  therefore  is  not  necessary  to  describe  them. 
They  appear  to  have  been  definitively  acted  upon  by  a 
court  of  competent  general  jurisdiction ;  to  have  resulted 
in  a  full  discharge  and  certificate  of  bankruptcy,  and  can- 
not therefore  be  thus  collaterally  di-awn  in  question  for  the 
alleged  irregularities.  We  say  the  proceedings  were  be- 
fore a  court  of  competent  jurisdiction,  as  they  were  enter- 
tained by  the  district  court  of  Jackson  county  under  terri- 
torial organization.  Under  the  act  of  Congress,  that 
court  was  invested  with  full  power  to  adjudicate  causes  in 
bankruptcy,  and  as  it  was  a  court  of  general  jurisdiction, 
nothing  should  be  presumed  against  its  authority  and  the 
regularity  of  the  proceedings.  These  should  be  presumed 
until  the  contrary  appears.  By  the  bankrupt  law  the  dis- 
charge is  made  conclusive  evidence  in  favor  of  the  bank- 
rupt, unless  impeached  for  fraud  or  wilful  concealment  by 
him  of  his  property  or  rights  of  property.  Rev.  Stat., 
§  4.  The  law  contemplates  no  other  ground  of  impeach- 
ment. The  irregularities  complained  of  can  by  no  means 
be  entertained  in  a  collateral  proceeding  like  the  present. 
We  conclude  that  the  court  below  did  not  err  in  giving 
force  to  the  certificate  in  bankruptcy,  upon  the  record  as 
it  appears  before  us. 

Judofment  afiirmed. 


Vcm  IT.  Higgins,  for  plaintifis  in  error. 
P.  Smith  and  D,  F.  Spurr,  for  defendant. 


DUBUQUE,  JULY,  1850.  549 


Bush  V.  Chapman. 


BUSH  V.  CHAPMAN". 

Where  suit  is  brought  on  a  written  or  special  contract,  it  must  regulate  plain- 
tiff's right  to  recover,  as  well  as  the  amount  recovered. 

Where  plaintiff  sued  for  work  done  pursuant  to  a  written  contract,  and  filed 
no  bill  of  particulars,  it  is  error  to  admit  evidence  to  show  that  he  had 
sustained  damages  in  consequence  of  delays  occasioned  by  defendants  fail- 
ing to  furnish  the  materials  promptly. 

By  claiming  the  benefit  of  a  special  contract,  and  making  it  the  gravamen  of 
his  action,  the  plaintiff  is  precluded  from  recovering  damages  for  delay,  &c. 

Error  to  Dubuque  District  Court. 

Opinion  by  Williams,  C.  J.  Assumpsit  for  $1000 
damages  in  the  district  com*t  of  Dubuque  county.  The 
plaintiff  filed  his  declaration,  setting  forth,  as  the  gravamen 
of  his  action,  a  special  contract  made  by  himself  and  the 
defendant  Bush,  on  the  24th  day  of  July,  1849,  by  which 
it  was  agreed  that  the  said  Chapman  was  to  do  the  mill- 
wright work  of  a  flouring  mill  for  the  said  John  D.  Bush, 
in  the  stone  building  erected  for  this  business  in  the  city 
and  county  of  Dubuque,  state  of  Iowa.  Bush  was  to  fur- 
nish all  the  materials  for  the  same.  The  mill  was  to  con- 
sist of  two  pair  of  three  and  a  half  feet  French  burr  mill 
stones,  now  on  the  premises.  Chapman  was  to  do  all  the 
work  that  was  necessary,  in  a  good  and  workmanlike 
manner,  and  to  have  the  mill  in  order  for  grinding  by  the 
Ist  of  October  next  thereafter  ;  then  to  have  an  extension 
of  time  to  complete  work  that  would  not  interfere  with  the 
grinding  and  making  of  flour.  In  consideration  of  which, 
Bush  was  to  pay  Chapman  $900,  in  the  following  manner, 
to  wit :  One  half  to  be  paid  as  the  work  progressed,  and 
the  other  half  when  the  work  was  complete.  The  plain- 
tiff avers,  that  he  was  ready  and  willing  to  keep  and 
perform  his  part  of  the  agreement,  as  made  between  him 
and  the  defendant ;  but  that  the  defendant  failed,  on  his 
part,  to  furnish  proper  materials,  so  as  to  enable  him  to 


550  SUPREME  COURT  CASES, 

Bush  V.  Chapman. 

complete  the  millwriglit  work  at  the  time  agreed  upon ; 
and  that,  nevertheless,  he  did  finish  and  complete  all  of 
the  work,  so  as  to  be  ready  for  grinding  on  the  1st  day 
of  February,  1850.  The  declaration  proceeds  in  the 
same  count  to  specify  what  materials,  necessary  to  the 
completion  of  the  work  in  the  time  appointed  by  the 
ngreement,  the  defendant  Bush  had  failed  to  furnish,  to 
enable  the  plaintiff  to  j^rogress  with  the  work;  the  manner 
of  his  failure,  and  the  injury  sustained  by  the  plaintiff  in 
consequence  of  that  failure ;  and  claims  damages  therefor, 
$1000.  The  second  count  is  for  work  and  labor  done, 
materials  furnished  at  the  instance  and  request  of  Bush, 
and  for  damages  sustained  by  plaintiff  by  reason  of  a 
failure  to  furnish  necessary  materials,  &c.  Common  counts 
for  work  and  labor  done  and  performed,  and  quantum 
meruit^  are  added,  with  the  averments  of  undertaking  and 
promising  to  pay,  &c.  In  the  district  court  a  verdict  was 
rendered,  and  judgment  entered  thereon,  in  favor  of 
plaintiff,  for  the  sum  of  $260.75  cents,  and  costs. 

Several  questions  were  presented  on  the  trial,  and  de- 
cided by  the  court  below.  Exceptions  were  taken  by  the 
defendant's  counsel.  A  motion  to  set  aside  the  verdict 
and  for  a  new  trial  was  also  made  and  overruled. 

As  the  case  is  presented  upon  errors,  we  consider  it 
necessary  to  notice  but  one.  We  will  let  the  others 
stand,  as  they  have  been  decided  by  the  court  below, 
deeming  them  legally  adjusted. 

The  third  point  made  by  the  counsel  for  the  plaintiff 
in  error  is,  that  the  court  below  erred  "  in  admitting 
evidence  adduced  by  the  plaintiff  to  show  that  he  had 
sustained  damages  in  consequence  of  delays  occasioned  by 
the  defendant's  failing  to  promptly  furnish  the  plaintiff 
with  materials  for  the  erection  of  said  mill,  when  the 
plaintiff  had  declared  on  a  written  contract,  and  when  he 
had  filed  no  sufficient  bill  of  particulars." 

The  bill  of  exceptions  shows  that  this  evidence  was 
ruled  to  be  admissible,  and  was  suffered  to  go  to  the  jury. 
The  price  of  the  work  fixed  by  the  special  and  written 


DUBUQUE,  JULY,  1850.  551 

Bush  V.  Chapman. 

contract,  the  admitted  and  proven  credits  of  the  de- 
fendant, and  the  verdict  of  the  jury,  show,  by  proper 
computation  had,  that  the  jury  must  have  taken  this 
evidence  into  consideration,  so  as  to  give  it  effect  to 
make  it  a  part  of  the  sum  for  which  the  verdict  was  ren- 
dered. 

By  his  declaration,  the  plaintiff  has  made  the  written 
agreement,  as  executed  between  him  and  the  defendant, 
the  gravamen  of  his  action.  He  avers  a  complete  per- 
formance of  his  part  of  it,  and  sues  for  the  price  of  the 
work  as  therein  stipulated.  He  seeks  to  enforce  the  pay- 
ment of  the  price  therein  fixed,  on  the  ground  that  he  had, 
by  the  1st  day  of  February,  1850,  (some  three  months 
after  the  time  set  by  the  written  agreement,)  completed 
the  work,  notwithstanding  the  failure  of  Bush  to  furnisli 
the  proper  materials  at  the  stipulated  time,  so  as  to  enable 
him  to  proceed  with  the  work  as  required  by  the  agree- 
ment. At  the  same  time,  he  declares  upon  the  common 
counts  for  work  and  labor  done,  &c.,  and  thereby  claims 
the  benefit  of  an  adjustment  of  his  rights,  independent  of 
the  written  contract,  so  as  to  enable  him  to  recover  the 
value  of  his  work  upon  evidence  thereof;  and  also  his 
damages  for  hindrance,  outlay,  loss  of  time,  &c.,  occa- 
sioned by  the  default  of  the  defendant  in  not  fulfilling  his 
'undertaking.  This  cannot  be  allowed.  If  a  plaintiff  sue 
on  a  written  or  special  contract,  so  as  to  make  it  the  basis 
of  his  action,  it  must  regulate  his  right  to  recover,  as  well 
as  the  amount  recovered. 

In  this  case  it  is  clear  that  plaintiff  did  not  consider  the 
written  contract,  if  violated  by  the  defendant,  at  an  end 
when  the  failure  to  perform  on  his  part  occm-red.  But 
that,  on  the  contrary,  he  treated  it  as  subsisting,  and  in 
force.  He  proceeded  on  it,  completed  the  work,  and 
made  it  the  ground  of  his  action  at  law. 

By  asserting  the  binding  effect  of  the  special  contract, 
claiming  the  benefit  of  it,  and  making  it  the  gravamen  of 
his  action,  he  is  precluded  from  the  recovery  of  any  dam- 
ages for  delay,  &c.    This  doctrine  is  recognized  and  asserted 


552  SUPHEME  COURT  CASES. 


Bush  V.  C'liapman. 


in  Cliitty  on  Contracts,  5  Am.  Ed.,  570,  note  2  ;  reference 
to  Sham  v.  Lewistown  Turnpike  Roaxl  Co.,  3  Penn.,  445. 
In  disposing  of  this  case,  chief  justice  Gibson  says,  "then, 
if  the  company  had  put  it  in  his  power  to  dispense  with 
the  contract  by  reason  of  delinquency  in  the  advancement 
of  funds,  it  was  his  business  either  to  take  advantage  of 
the  omission  by  declaring  the  contract  at  an  end,  or  to 
waive  the  consequences  of  the  default  by  treating  it  as 
still  subsisting.  He  chose  to  do  the  latter,  and  though  it 
appeared  the  work  had  languished  for  want  of  the  requi- 
site advancements,  he  continued  his  services  without  any 
intimation  of  their  being  rendered  on  new  and  imj^lied 
terms.  That  he  considered  the  original  contract  as  a 
subsisting  one,  appears  from  his  having  counted  on  it.  The 
very  \Vork  for  which  he  demands  compensation  was  done 
on  the  faith  of  that  contract.  Would  he  have  been  per- 
mitted to  go  on,  had  he  informed  the  company  that  he  was 
working  under  no  contract  but  what  the  law  might  imply?  " 
The  principle  of  law  here  laid  down,  directly  ai^plies  to 
the  case  at  bar,  and  its  application  is  most  forcible.  In 
the  case  referred  to,  the  plaintiff  sued  in  assumpsit,  on  a 
quantum  meruit  count,  and  treated  the  special  contract 
as  valid  and  subsisting,  and  sought  to  recover  on  that 
ground.  In  the  case  at  bar,  the  plaintiff  not  only  treats 
the  written  contract  as  subsisting  and  binding  in  all  its- 
terms,  but  at  the  same  time  claims  to  recover  damages  for 
delay,  hindrance,  and  extra  expense  in  completing  the 
work.  By  admitting  the  evidence  of  damages,  thus  sus- 
tained by  the  plaintiff,  by  reason  of  the  default  of  Bush, 
the  case  became  duplex  in  substance,  as  well  as  in  form, 
by  the  declaration,  and  a  verdict  is  rendered  by  the  jury 
for  the  contract  price,  and  damages  for  the  violation  of 
the  contract.  The  action  being  brought  on  the  written 
contract,  the  plaintiff  cannot  recover  damages  which  are 
not  stipulated  for  in  it.  To  this  effect,  vide  9  Ala.,  106  ; 
11  idem,  377;  1  Gr.  Greene,  408;  14  Maine,  364, 1  Shep.,60; 
4  Pick.,  114;  19  idem,  349 ;  Chitty  on  Contracts,  5  Am.  Ed., 
741,  742.    See  also  Rev.  Stat.,  469,  §  6,  in  relation  to  filing 


DUBUQUE,  JULY,  1850.  553 


Frcn  tress  v.  Markle. 


tlie  plaintiff's  declaration  and  tlie  copy  of  the  instrument 
of  writing  or  account,  on  wliich  the  action  is  brought. 
The  judgment  of  the  court  below  is  in  this  erroneous. 

Judgment  reversed. 

B.  M,  Samuelsy  for  plaintiff  in  error. 

Hempstead  Sj"  Burt,  for  defendant. 


•      FRENTRESS  v.  MARKLE. 

A  joint  debtor  has  a  contingent  demand  against  his  co-debtor,  which  is  prov- 
able under  the  fifth  section  of  the  general  bankrupt  law,  and  is  barred  by 
a  certificate  of  bankruptcy;  such  bankrupt  is  therefore  a  coinpetent  wit- 
ness in  an  action  against  his  co-debtor. 

E.  and  J.  executed  their  partnership  note  to  F. ;  before  the  note  became  due, 
E.  and  J.  dissolved  partnership,  and  it  was  agreed  that  E.  should  take  the 
goods  and  credits  and  pay  the  debts  of  the  firm.  F.  approved  the  arrange- 
ment, and  promised  to  return  the  partnership  note,  and  take  in  satisfaction 
the  individual  note  of  E.,  and  give  J.  a  receipt ;  but  the  old  note  was  not 
given  up,  nor  was  a  new  note  or  receipt  given ;  F.  sued  E.  and  J.,  but  ob- 
tained service  and  judgment  only  against  E.,  who  was  afterwards  dis- 
charged from  the  judgment  by  a  decree  in  bankruptcy  ;  afterward  pro- 
ceedings were  commenced  by  scire  facias  against  J.  to  make  him  a  party 
to  the  judgment :  held  that  the  agreement  between  the  parties  did  not  show 
a  release  to  J.,  or  an  accord  and  satisfaction ;  that  it  was  only  an  executory 
agreement. 

A  release  is  an  executed  contract,  and  must  be  under  seaL 

An  accord  not  executed  is  no  bar  to  an  action. 

An  accord  and  satisfaction,  to  constitute  a  legal  bar  to  an  action,  must  be 
full,  perfect  and  complete. 

In  order  to  have  a  promise  operate  as  a  satisfaction,  it  must  be  that  of  a  third 
person  ;  something  over  and  above  the  original  promise  or  indebtedness. 

Error  to  Dubuque  District  Court. 

Opinion  by  G-reene,  J.  Proceedings  commenced  by 
scii^e  facias  against  John  W.  Markle,  to  make  him  a  party 
to  a  judgment  rendered  against  his  former  partner,  E.  Mat- 
tox,  on  their  joint  note  executed  to  the  plaintiff. 

It  appears  of  record  in  the  case,  that  in  1839,  Mattox 
Vol.  IL  36 


554  SUPREME  COUET  CASES, 


Frentress  v.  Markle, 


&  Markle  were  partners  as  mercliants,  and  being  in- 
debted to  E.  Frentress,  tliey  executed  their  joint  note 
for  tbe  payment  of  f  1000.  Before  the  note  became  due, 
the  partnership  was  dissolved,  and  it  was  stipulated  that 
Mattox  should  take  the  goods  and  credits  and  pay  the 
debts  of  the  firm.  A  few  months  after  this  arrangement, 
the  parties  met,  and  the  plaintiff  approved  the  arrange- 
ment, and  promised  to  return  the  partnership  note  and 
take  in  satisfaction  thereof  the  individual  note  of  B. 
Mattox,  and  give  Markle  a  receipt  against  the  partnership 
note.  But  the  old  note  was  not  given  up,  nor  was  a  new 
note  nor  a  receipt  given.  Frentress  sued  Mattox  & 
Markle  in  1840  on  the  note,  and.  obtained  judgment 
against  Mattox,  who  alone  was  served  with  process.  In 
1843,  Mattox  was  discharged  from  his  debts  under  the 
general  bankrupt  law. 

On  the  trial  of  this  cause,  the  defendant  pleaded  the 
general  issue,  and  on  jjroving  the  foregoing  facts,  con- 
tended that  he  was  discharged  from  all  liability,  and  ob- 
tained judgment  accordingly.  One  of  the  objections  urged 
to  the  proceedings  below  is,  that  Mattox  was  admitted  as  a 
witness  in  Markle' s  behalf.  It  is  contended  that  Mattox 
was  incompetent,  because  he  was  a  party  to  the  note  and  to 
the  record,  and  interested  notwithstanding  his  discharge 
in  bankruptcy.  We  cannot  think  that  he  was  objection- 
able as  being  a  party  to  the  original  suit  uj)on  the  note. 
From  that  record  he  had  been  completely  discharged  by 
his  bankrupt  certificate.  But  it  is  contended  that  Mattox 
was  interested  in  this  suit,  because  Markle  could  have  no 
claim  on  him  until  after  judgment  and  a  satisfaction  of 
the  debt,  and  that  if  Markle  was  required  to  pay  the  debt, 
he  could  then  present  his  demand  for  contribution  against 
Mattox.  This  position  would  be  correct  if  the  contingeni 
demand  of  Markle  against  Mattox  for  contribution  had  nol 
been  provable  under  the  general  bankrupt  law,  passed  by 
Congress  in  1841.  The  fifth  section  of  that  act  allowed 
"  sureties,  indorsers,  bail,  or  other  persons  having  uncer- 
tain and  contingent  demands,"  to  prove  their  claims  under 


DUBUQUE,  JULY,  ISbo.  555 

Frentress  v.  Markle. 

a  commission  of  bankruptcy.  As  every  joint  debtor  has  a 
contingent  demand  against  his  co-debtor,  depending  upon 
his  being  compelled  to  pay  more  than  his  share  of  the 
joint  debt,  it  is  clear  that  such  a  claim  is  provable  under 
the  fifth  section  of  the  act.  And  according  to  the  fourth 
section,  all  provable  claims  are  barred  by  the  bankrupt's 
discharge  and  certificate.  Consequently,  any  demand  that 
Markle  might  have  for  contribution  against  Mattox,  was 
barred  by  his  certificate  of  bankruptcy.  His  interest,  then, 
could  not  in  this  particular  be  affected  by  any  judgment 
for  or  against  Markle.  He  was,  therefore,  a  competent 
witness.     Dea)i  v,  Speakman,  7  Blackf ,  317. 

The  principal  question  involved  in  the  trial  below  re- 
mains to  be  considered.  The  court  charged  the  jury  in 
substance,  that  if  they  believed  that  Frentress  agreed,  be- 
fore the  note  fell  due,  to  relinquish  Markle,  and  surrender 
the  partnership  note  given  by  Mattox  &  Markle,  for  a 
new  note  against  Mattox  alone,  and  that  Mattox  & 
Markle  settled  their  partnership  business  on  the  streugth  of 
such  agreement,  it  is  in  law  a  discharge  of  the  debt  against 
Markle,  and  the  failure  of  Frentress  to  surrender  the  old 
note  and  take  a  new  one,  cannot  be  set  up  as  a  reason  for 
enforcing  the  collection  of  the  original  note  against  Markle. 

In  the  application  of  these  instructions  to  the  evidence, 
the  court  must  have  regarded  the  transaction  either  as  a 
release  or  as  an  accord  and  satisfaction.  But  the  instruc- 
tions themselves  show,  that  it  was  merely  an  executory 
agreement,  which  could  have  no  binding  force  in  either 
of  those  particulars.  As  a  release,  it  is  essentially  defi- 
cient. It  is  not  under  seal,  not  even  in  writing,  and  im- 
ports no  consideration.  In  Dillingham  v.  Estill,  3  Dana, 
21,  it  was  held  that  a  release  is  an  executed  contract,  and 
must  be  under  seal.  This  decision,  however,  goes  too  far, 
for  the  weight  of  authority  shows  that  a  seal  is  not  neces- 
sary to  the  validity  of  a  release,  unless  it  pertain  to  an 
interest  in  land,  or  to  a  debt  due  by  an  instrument  under 
seal,  which  can  only  be  released  by  a  writing  of  equal 
dignity.    Co.  Litt.,  264;  8  Taunt,  sf,  596;  7  Blackf.,  562. 


556  SUPREME  COURT  CASES, 

Frentress  v.  Markle. 

But  when  a  release"  not  under  seal  is  admissible,  it  must 
acknowledge  a  consideration.  4  Gilm.,  545.  Hence,  with- 
out a  seal,  and  without  consideration,  there  can  be  no  re- 
lease.    13  John.,  87;  17  id.,  169;  1  Cowen,  122. 

As  the  agreement  does  not  amount  to  a  release  in  law, 
can  it  be  considered  an  accord  and  satisfaction  ?  The 
agreement  was  to  give  up  the  company  note  and  take  the 
individual  note  of  Mattox  in  satisfaction.  But  the  agree- 
ment was  never  executed,  the  satisfaction  was  never  given, 
and  hence  it  can  onl}?-  be  regarded  as  an  executory  accord 
without  satisfaction. 

It  is  clear  that  an  accord  not  executed  can  be  no  bar 
to  an  action.  Coitw  Houston,  3  Johns.  C,  243;  Watki?i- 
son  V.  Ingleshj,  5  Johns.,  386;  Latapeck  v.  Peckolier,  2 
Wash.  C.  C,  180 ;  Russell  v.  Lytle,  6  Wend.,  390 ;  Brook- 
lyn Bk.  V.  De  Granio,  23  ib.,  342;  Frost  v.  Johnson,  8 
Ohio,  393.  The  accord  or  agreement  to  accept  satisfaction 
must  be  fully  executed  to  form  a  defence.  3  East.,  252; 
1  Ld.  Ray.,  122;  Bac.  Ab.,  tit.  Accord  A;  Woodruff  •^. 
Dobbins,  7  Blackf.,  582. 

An  accord  and  satisfaction,  to  constitute  a  legal  bar  to 
an  action,  must  be  full,  perfect,  and  complete.  This  prin- 
ciple is  not  questioned  by  any  authority.  Apply  the  doc- 
trine of  accord  and  satisfaction  to  the  present  case,  and 
upon  the  important  point  of  satisfaction  it  will  be  found 
entirely  deficient.  The  accord  was  not  only  left  without 
execution;  it  was  also  left  without  any  consideration. 
Frentress  received  nothing  in  payment,  nor  did  he  receive 
new  or  additional  security.  The  fact  that  Mattox  & 
Markle  settled  their  partnership  business  with  reference 
to  this  agreement,  creates  no  valid  consideration  to  Fren- 
tress. He  was  not  a  party  to  that  settlement,  and  derived 
no  benefit  from  it,  nor  was  Markle  injured  thereby  from 
his  procurement.  And  although  Markle  left  sufficient 
means  with  Mattox  to  pay  half  the  note,  it  was  far  from 
being  a  satisfaction  to  Frentress,  especially  as  the  condi- 
tions upon  which  he  promised  to  give  up  the  company 
note  had  not  been  complied  with. 


DUBUQUE,  JULY,  1850.  667 

Fren  tress  v.  Markle. 

But  if  the  agreement  had  been  fully  executed,  the  old 
note  given  up,  and  the  note  of  Mattox  accepted  with  the 
express  understanding  that  Markle  was  to  be  discharged, 
it  might  well  be  questioned  whether  even  this  would 
amount  to  a  legal  defence  of  the  partnership  indebtedness, 
unless  the  Mattox  note  had  actually  been  paid.  Under 
the  arrangement,  the  security  would  be  decreased  rather 
than  increased.  It  would  be  substituting  a  less  promise 
for  a  greater,  one  for  two.  And  it  is  as  obvious  in  reason 
as  it  is  well  settled  in  law,  that  to  have  a  promise  operate 
as  a  satisfaction,  it  must  be  that  of  some  third  person, 
or  something  over  and  above  the  original  promise  or  in- 
debtedness. 

In  Cole  V.  C.  f  K  Sackeft,  1  Hill,  516,  C.  and  E.  being 
partners,  gave  their  note  for  a  debt  of  the  firm,  under  an 
agreement  that  it  should  be  in  full  satisfaction ;  and  after 
dissolving,  E.  agreed,  for  a  consideration  received  from  C. 
to  assume  and  pay  the  debt  for  which  the  note  was  given, 
and  accordingly  took  up  the  firm  note  and  gave  his  own 
•in  lieu,  and  it  was  held  to  be  no  bar  to  a  recovery  on  the 
original  consideration.  The  opinion  in  that  case  was  de- 
livered by  Judge  Cowen,  and  he  deliberately  declared  the 
doctrine  to  be  entirely  settled,  that  the  promissory  note  of 
a  debtor,  given  for  a  precedent  demand,  will  not  operate 
as  payment,  so  as  to  preclude  the  creditor  from  suing  on 
the  original  consideration,  though  given  under  an  express 
agreement  that  it  should  be  received  in  full  satisfaction ; 
but  otherwise  if  the  note  be  that  of  a  third  person.  This 
doctrine  was  subsequently  reconsidered  and  approved  in 
Waydell  v.  Luei\  5  Hill,  448.  And  in  that  case,  it  was 
held  that  the  giving  of  a  promissory  note  by  one  of  several 
partners  for  a  demand  antecedently  due  from  all,  will  not 
extinguish  their  liability,  though  the  creditor  expressly 
accept  the  individual  note  in  satisfliction. 

This  doctrine  is  entirely  established  in  New  York  and 
New  Hampshire,  and,  with  slight  exceptions,  in  the  other 
states  of  this  union. 

In  England  the  doctrine  that  a  mere  accord,  if  it  be 


558  SUPREME  COURT  CASES, 

Frentress  v.  M;u-kle. 

binding  and  afford  a  new  remedy,  was  for  a  time  consid- 
ered a  bar  to  an  action.  Case  \.  Barber,  T.  Ray.,  450; 
Milward  v.  Ingraham,  1  Mod.,  205;  Reed  v.  White,  5  Esp., 
122;  Evans  v.  Drummond,  4  ih.,  89.  But  before  the  dis- 
criminating mind  of  Lord  Tenterdon,  this  doctrine  was 
found  to  be  deficient  in  legal  principle,  and  is  now  nearly 
obsolete,  if  not  entirely  repudiated.  David  v,  Ellice,  5 
Barn,  &  Cress.,  196;  Lodge  v.  Dicers,  3  Barn.  &  Aid.,  610; 
5  East.,  233;  11  Eng.  Com.  La^,  201.  And  Gow.  on  Part., 
Am.  Ed.,  1825,  p.  200,  thus  defines  the  rule  :  ''  When  the 
two  requisites  of  a  joint  interest  and  a  joint  credit  con- 
cur, nothing  but  actual  satisfaction,  or  the  extinguish- 
ment of  the  original  consideration,  by  the  acceptance  of  a 
higher  security,  can  invalidate  the  claim  which  the  credi- 
tor possesses  against  the  firm."  Apply  this  rule  to  the 
present  case,  and  it  obviously  follows  that  the  original 
claim  is  not  invalidated.  There  was  no  actual  satisfac- 
tion, nor  was  any  higher  security  substituted.  In  a  word, 
the  case  at  bar  does  not  come  up  to  any  of  the  authorities, 
English  or  American,  to  which  we  have  been  referred  by 
counsel  for  the  defendant  in  error.  It  may  well  be  con- 
sidered a  legal  axiom  that  a  promise  to  pay  a  subsisting 
debt  is  no  consideration,  is  no  satisfaction.  How  then 
can  a  mere  agreement  to  have  one  joint  debtor  promise  to 
pay  a  partnership  debt  be  considered  a  satisfaction  ?  But 
in  the  case  at  bar  it  is  contended  that  Mattox  &  Markle 
settled  their  partnership  business  upon  the  strength  of 
the  agreement  that  Mattox  should  pay  Frentress,  and  that 
it  is  now  unjust  to  enforce  payment  of  Markle.  While 
we  regret  the  consequences  of  this  decision  upon  Markle, 
we  cannot  disregard  the  principles  of  law  by  which  we 
are  governed.  Nor  can  we  forget  the  manifest  propriety 
of  the  rule  that  partners  are  all  principals,  that  each  is 
bound  for  the  debts  of  the  firm  in  solido ;  that  where 
they  have  had  their  creditor's  money  and  eaten  their 
bread  at  his  expense,  it  is  their  duty  severally  and  jointly, 
not  merely  to  promise  by  their  note,  and  above  all  by  the 
agreement  to  give  the  promissory  note  of  one  member  of 


DUBUQUE,  JULY,  1850.  559 

Grable  v.  The  State, 

tlicir  firm,  but  it  justly  and  legally  becomes  their  duty  to 
repay  the  money  loaned  by  the  plaintiff,  or  pay  the  price 
of  his  property  which  was  appropriated  to  theii"  benefit. 

We  must  therefore  conclude  that  the  charge  to  the  jury 
in  this  case  was  erroneous. 

Judgment  reversed. 

P.  Smith,  T.  S.  Wilson  and  M.  Y,  Johnson,  for  plain- 
tiff in  error. 

Hempstead  ^  Burt,  for  defendant. 


GRABLE  V.  THE  STATE. 

In  a  criminal  case  the  jurors  had  been  empanneled  and  sworn,  and  the  case 
partly  submitted  to  tliem,  when  the  court  adjourned  for  dinner;  during 
the  adjournment  one  of  the  jurors  separated  himself  from  liis  fellows  ; 
and  when  the  court  met,  this  juror  was  dismissed  and  another  person 
substituted  :  held  that  this  substitution  was  erroneous. 

The  statute  prohibits  tlie  separation  of  jurors  in  trials  for  felonies. 

It  is  error  to  receive  a  verdict  and  render  a  judgment  after  the  term  of  a 
court,  as  designated  by  law,  has  expired,  and  on  a  day  fixed  for  a  term  of 
the  court  in  another  county. 

Where  a  term  of  court  is  appointed  by  law  to  be  held  in  Clinton  county  on 
Monday,  and  in  Scott  county  on  the  following  Thursday,  the  term  in 
Clinton  county  ends  on  Wednesday  evening. 

Explains  power  of  the  district  judge  to  appoint  special  terms  of  court;  rea- 
sonable notice  must  be  given. 

Two  terms  of  the  district  court  cannot  be  held  in  one  district  on  the  same 
day. 

Error  to  Clinton  District  Court. 

Opinion  by  Williams,  C.  J.  At  the  October  term  of 
the  district  court  for  Clinton  county,  a.d.  1848,  Joseph 
Grable  was  indicted  and  tried  for  the  crime  of  mau- 
slaughter.  The  jury  rendered  a  verdict  of  "guilty," 
and    assessed  a  fine  of  $500,  to  be  paid  by  him  to  the 


560  SUPREME  COURT  CASES, 

Grable  v.  The  State. 

state.  Upon  this  verdict  the  court  entered  judgment 
against  him  ;  and  further  sentenced  him  to  confinement 
in  the  penitentiary  for  the  term  of  one  year,  and  to  pay 
the  costs  of  prosecution. 

Before  final  judgment,  motions  for  a  new  trial,  and  in 
arrest  of  judgment,  were  made,  and  overruled  by  the 
court.  The  overruling  of  the  motions  for  a  new  trial,  and 
in  arrest  of  judgment,  is  also  assigned  for  error. 

The  points  of  law  involved  in  the  instructions,  and  in 
the  motions  for  a  new  trial,  and  in  arrest  of  judgment, 
being  substantially  the  same,  we  will  consider  them  to- 
gether. 

The  first  error  assigned  is,  that  "  after  the  jury  had 
been  sworn,  and  had  heard  a  part  of  the  evidence,  one  of 
the  jurors  was  separated  from  his  fellows,  and  entirely 
left  them." 

The  second  is,  that  "  the  court  permitted  the  prosecu-^ 
tion  to  withdraw  the  said  juror,  who  had  been  separated 
from  his  fellows,  and  swore  another  juror  in  the  place  of 
the  juror  so  discharged." 

As  these  two  assignments  relate  to  the  same  subject 
matter,  in  the  procedure  of  the  court  below,  and  present 
the  entire  transaction  in  connection,  we  will  consider 
them  together. 

The  trial  by  jury,  as  established  by  our  fundamental 
law,  is  justly  regarded  as  a  shield  to  the  citizen  in  the  en- 
joyment of  his  civil  rights.  It  is  secured  to  every  man, 
that  he  may  be  fully  and  fairly  protected  from  unjust  and 
illegal  encroachment  upon  those  rights.  Originating  in 
times  of  tyranny  and  oppression,  where  the  governed 
were  rendered  liable  to  the  loss  of  life,  liberty  and  pro- 
perty at  the  mere  will  of  those  who  governed,  it  has  come 
down  to  us  sanctioned  by  the  a]3proval  of  the  learned,  the 
good  and  patriotic  of  many  generations,  and  is  adopted 
by  the  civilized  nations  of  the  earth. 

It  is  now  regarded  as  essential  to  free  government,  and 
is  peculiarly  adapted  to  a  government  founded  as  ours  is, 
in  the  sovereign  will  of  the  people.     A  juror  is  called  to 


« 


DUBUQUE,  JULY,  1850.  561 

Grable  v.  The  State. 

exercise  a  high  and  sacred  trust,  in  consideration  of  his 
obligation  to  his  country  and  his  fellow  citizens.  He 
must,  if  he  will  faithfully  perform  his  duty,  hear,  investi- 
gate and  decide  impartially. 

The  facts  submitted  to,  and  decided  by  the  jury  make 
up  the  case,  to  which  the  judgment  of  the  law  is  applied, 
and  by  which  the  rights  of  the  parties  are  concluded. 

So  important  is  this  feature  of  our  judicial  procedure, 
that  the  courts  of  our  country  have  regarded  it  with  the 
most  profound  interest  and  jealousy. 

In  criminal  proceeding  particularly,  the  fullest  and 
most  extended  opportunity  is  afforded  to  the  accused  for 
trial  by  an  impartial  and  unbiased  jury. 

It  has  been  the  constant  care  of  courts  to  guard  the 
purity  of  the  jury  box ;  and  legislatm-es  have  provided,  by 
enactment  of  law,  the  strictest  procedure  for  the  selec- 
tion and  government  of  jurors,  and  the  requisites  to  be 
obdved  by  courts  on  the  trial  in  view  of  the  rights  in- 
volved. 

In  this  state  the  statute  provides,  that  "all  issues  of 
fact  joined  upon  any  indictment  shall  be  tried  by  a  jury 
of  the  courts  where  such  was  found."  This  is  identical  in 
substance  with  the  provisions  of  our  constitution,  applied 
to  indictable  offences.  Rev.  Stat.,  p.  155,  §  60.  By  §  62, 
the  right  is  given  to  the  accused  to  challenge  peremp- 
torily six  jyrors,  where  a  felony  is  charged,  the  punishment 
of  which  is  not  capital;  and  it  is  the  privilege  of  the 
prosecution  to  challenge  half  that  number.  Thus  have 
the  legislature  by  express  provision,  been  careful  to  mark 
out  the  duty  of  the  court  and  guard  the  rights  of  parties. 
It  has  been  m-ged  here,  that  the  act  of  the  court,  by  dis- 
missing the  juror  after  he  had  been  sworn,  and  after  he 
had  heard  a  part  of  the  testimony  in  the  case,  on  the 
motion  of  the  prosecutor,  where  it  was  not  made  to  appear 
that  he,  the  juror,  had  conversed  with  any  person  on  the 
subject  of  the  trial,  but  had  merely  separated  from  his 
fellows,  was  in  derogal  Ion  of  the  rig  hts  of  the  accused ; 
and  that  the  calling  and  swearing  of  another  in  his  stead, 


562  SUPREME  COURT  CASES, 

Grable  v.  The  State. 

after  the  right  to  challenge  had  been  exercised  to  exhaus- 
tion, was  oppressive,  and  deprived  him  of  his  legal  protec- 
tion from  M^rong.  The  bill  of  exceptions  does  not  set  forth 
the  fact  that  the  right  of  the  prisoner  to  challenge  was 
refused  by  the  court  upon  the  introduction  of  the  juror  who 
was  called  to  act  in  the  place  of  the  one  who  was  dismissed. 
That  question  is  not,  therefore,  here  for  adjudication.  As 
the  record  is,  on  that  point,  we  must  not  presume  that 
the  court  did  not  refuse  to  give  the  prisoner  the  benefit  of 
the  law.  But  the  bill  of  exceptions  shows  that  the  full 
jury  had  been  sworn,  and  the  trial  before  them  had  so 
far  been  proceeded  in,  that  a  part  of  the  testimony  in  the 
case  had  been  heard;  that  the  court  adjourned  for  dinner; 
that  during  the  adjournment,  the  juror  separated  himself 
from  his  fellows,  and  that,  on  the  motion  of  the  prosecutor, 
made  in  the  afternoon,  when  the  court  again  was  in 
session,  the  juror  v.as  dismisssed,  and  another  sworn  and 
put  upon  the  jmy  in  his  stead.  In  this,  we  think,  the 
court  erred.  Tliis  proceeding  must  be  regarded  as  a  vio- 
lation of  the  requirement  of  the  statute.  Rev.  Stat.,  p. 
161.  "In  trials  for  misdemeanors  the  court  may  permit 
the  jury  to  separate  for  food  and  refreshment.  But  in 
trials  for  felonies  the  jury  shall  not  be  separated  until 
there  is  no  prosjject  of  their  agreement  to  a  verdict,  and 
it  shall  be  the  duty  of  the  court  to  provide  them  all  suit- 
able refreshments."  This  being  an  indictment  for  a 
felony,  the  statute  is  applicable  to  it.  It  is  not  necessary, 
in  this  case,  to  discuss  at  length  the  question  whether  the 
separation  of  the  juror  from  his  fellows,  after  he  had  been 
sworn  in  the  case,  ..nd  the  trial  had  proceeded  so  far  as 
to  hear  evidence  on  the  part  of  the  prosecution,  is  enough 
to  set  aside  the  verdict.  We  will  however  say  that,  in  a 
capital  case  or  for  a  felony  of  the  magnitude  of  the  case 
at  bar,  it  has  been  decided  that  where,  pending  the  trial, 
a  juror  separates  himself  from  his  fellow  jurors  under  cir- 
cumstances which  i-endered  it  highly  probable  that  there 
might  have  been  abuse,  or  improper  conduct,  affecting 
the  rights  of  the  parries,  the  verdict  should  be  set  u^Ide. 


DUBUQ'UE,  JULY,  1850.  5G3 

Giable  v.  The  State. 

Smit/i  V.  Thompson^  1  Cowen,  221  and  note.  But 
our  legislature  have  enacted  that,  ''  In  trials  for  misde- 
meanors, the  court  may  permit  the  jury  to  separate  for 
food  and  refreshment ;  but  in  trials  for  felonies  the  jury 
shall  not  be  separated  until  there  is  no  prosjDect  of  their 
agreement  to  a  verdict,  and  it  shall  be  the  duty  of  the 
court  to  provide  them  all  suitable  refreshments."  Rev. 
Stat.,  161,  §  9.  This  enactment,  in  terms  not  to  be  misun- 
derstood, expressly  prohibits  a  separation  of  the  jury  in 
trials  for  felonies ;  and  provides  for  the  comfort  of  the  jury, 
whilst  in  custody  of  the  law,  for  purposes  of  the  trial. 
Much  disquisition  by  jurists,  as  to  the  separation -of  jurors 
in  its  effect  upon  the  verdict,  is  found  in  the  law  books 
of  England  and  this  country.  But  it  is  unnecessary  to 
enlarge  for  the  purpose  of  ascertaining  judicially,  and 
establishing,  the  most  reasonable  conclusion,  as  the  law- 
making power  of  this  state  has  declared  it  clearly.  For 
this  reason,  the  court  might  have  set  aside  the  verdict  if 
that  jm-or  had  participated  in  making  it.  His  exclusion 
from  the  box  was,  therefore,  proper.  This  brings  us  to 
the  next  point  in  the  assignments  of  error. 

It  is  contended  that  the  court  erred  in  permitting  the 
prosecution  to  withdraw  the  juror  who  had  been  separated 
from  his  fellows,  and  in  calling  and  swearing  another  juror 
in  his  place,  after  a  part  of  the  evidence  in  the  case  had 
been  heard  by  the  jury  as  at  first  constituted. 

The  bill  of  exceptions  shows  that  such  was  the  pro- 
cedure of  the  coiu-t.  This  proceeding  is  complained  iif  by 
the  defendant  as  an  infringement  upon  his  right  of  chal- 
lenge. It  appears  that  the  defendant  stood  upon  his  legal 
rights,  and  remained  silent  during  this  action  of  the  com't. 

We  have  already  spoken  of  the  rights  secured  by  law 
to  the  accused  in  a  proceeding  for  a  felony.  It  is  his  right 
by  the  statute  to  challenge  i)eremptorily  six  jurors.  The 
introduction  of  the  new  juror  without  the  consent  of  the 
accused,  might,  if  suffered  to  stand  as  a  precedent,  lead  to 
injustice,  by  procuring  such  change  in  the  panel  as  ^vou^d 
result  in  injustice  to  him.     Having  exhausted  his   dial- 


564  SUPREME  COURT  CASES, 

Gral>le  r.  The  State. 

lenges  before  the  calling  of  the  new  juror,  for  whose  re- 
jection he  might  have  good  cause  of  challenge,  by  oper- 
ation of  law,  he  would  be  obliged  to  accept  him;  and  thus 
be  materially  injured  in  his  right.  Besides,  such  a  com- 
bination of  mind  might  be  thus  brought  to  the  adjudica- 
tion of  a  case,  as  would  never  have  been  suffered  by  the 
party,  had  his  right  of  peremptory  challenge  not  been  ex- 
hausted upon  a  view  of  the  panel  as  it  stood  upon  the 
selection,  as  made  when  the  trial  was  commenced.  The 
right  of  the  accused,  in  this  respect,  we  think  was  infringed 
by  this  proceeding.  The  accused  had  the  right  to  his  chal- 
lenge of  all  the  jurors.  Scone  v.  The  People,  2  Scam., 
326  ;  The  People  v.  Goodwin,  18  Johns.,  187. 

But  the  case,  as  presented  and  nrgued  here,  is  affected 
by  a  proceeding  still  more  objectionable  than  that  just 
noticed.  It  appears  by  the  bill  of  exceptions,  that  a  part 
of  the  testimony  of  the  prosecution  had  been  heard  by 
the  jury  in  the  forenoon  of  the  day  on  which  the  trial 
commenced,  and  when  the  discharged  juror  was  acting  with 
the  jury ;  that  after  an  adjournment  for  dinner,  in  the 
afternoon,  when  the  defaulting  juror  had  been  discharged, 
a  juror  was  called  to  act  in  his  stead,  and  the  trial  pro- 
ceeded without  recalling  the  witnesses  who  had  been 
heard  by  the  jury  as  at  first  organized.  Such  being  the 
fact,  as  presented,  that  part  of  the  testimony  was  not  heard 
by  the  new  juror.  The  law  contemplates  the  hearing  of 
the  evidence  by  each  juror  for  himself.  It  is  the  right  of 
the  party  that  it  eliould  be  so.  A  full  and  fair  trial  by 
jury  could  not  be  otherwise  had.  A  jealous  and  strict 
regard  for  the  integrity  of  the  jury,  as  legally  established, 
cannot  be  dispensed  with.  The  law  has  carefully  pro- 
vided guards  in  order  to  the  protection  of  the  rights  of 
parties.  They  must  be  strictly  observed.  As  far  as  a  part 
of  the  testimony  was  concerned,  in  view  of  the  law,  the 
defendant  was  found  guilty  upon  the  verdict  of  eleven 
jurors.  This  proceeding  was,  therefore,  erroneous.  Upon 
the  introduction  of  the  new  juror,  the  evidence  should 
have  been  commenced  and  heard  anew.      The  trial  should 


DUBUQUE,  JULY,  1850.  505 

Grable  v.  The  State. 

have  been  commenced  de  novo,  upon  the  change  of  the 

jury. 

The  other  and  only  assignment  of  error  which  we  deem 
it  necessary  to  notice,  is  that  in  relation  to  the  right  of  the 
court  to  be  in  session  and  to  try  causes  in  Clinton  county, 
on  the  day  upon  which  this  trial  was  had. 

It  is  contended,  that  by  the  law  hxing  the  time  for  hold- 
ing the  district  court  in  Clinton  county,  the  term  ended  on 
Wednesday,  and  commenced  in  the  adjoining  county  of 
Scott  on  Thursday  of  the  same  week.  Tliis  is  true.  But 
in  answer  to  this,  the  act  of  the  legislature,  approved  Jan- 
uary 22,  1848,  entitled  "  An  act  to  change  the  times  of 
holding  courts  in  the  second  judicial  district  "  of  this 
state,  is  replied.  By  this  act  it  is  provided,  that  "  in  the 
county  of  Clinton,  the  time  of  holding  the  court  shall  be 
on  the  second  Monday  after  the  fourth  Monday  in  April, 
and  first  Monday  after  the  fourth  Monday  in  September. 
In  the  county  of  Scott,  on  Thursdays  following  the  Mon- 
days for  holding  the  courts  in  Clinton."  The  same  act 
also  provides  as  follows  : 

"  Sec.  3.  The  judge  of  said  judicial  district  (the  2d) 
shall  have  power  to  adjourn  the  courts  required  to  be  held 
at  the  regular  terms  above  named,  and  to  hold  special 
terms  of  court  in  lieu  thereof ;  and  to  hold  special  terms 
of  court  in  any  of  the  counties  of  said  district  whenever 
in  his  opinion  the  public  interests  may  require  it ;  and 
for  a  like  cause  to  adjourn  the  regular  term  for  holding  in 
any  one  county,  and  hold  a  special  term  of  com't  in  lieu 
thereof  in  any  other  county  of  said  district. 

"  Sec.  4.  Whenever  a  special  term  of  court  is  held  in 
any  county  of  said  district,  it  shall  be  in  the  power  and 
duty  of  the  judge  of  said  district  to  provide  for  the  trial 
of  criminal,  civil  or  chancery  business,  and  to  order  pro- 
cess of  all  kinds  to  be  returnable  to  said  special  term, 
and  to  require  or  dispense  with  the  necessity  of  summon- 
ing grand  and  special  jurors  at  such  special  terms,  as  in 
his  opinion,  the  public  good  may  require  ;  and  in  all  such 
cases,  the  order  of  the  judge  calling  such  special  court 


566  SUPREME  COURT  CASES, 

Grable  v.  The  State. 

shall  specify  tlie  nature  and  character  of  the  business  to 
be  transacted  at  said  special  term." 

The  bill  of  exceptions  shows  that  the  verdict  in  the  case 
was  rendered  hj  the  jury  on  the  Thursday  after  the  Mon- 
day on  which,  by  appointment  of  law,  the  term  com- 
menced in  Clinton  county,  and  the  first  day  of  the  term 
for  Scott  county.  That  on  the  Friday  following,  a  motion 
was  made  to  arrest  the  judgment,  whereupon  the  judge 
directed  the  clerk  of  the  Clinton  county  court  to  make 
an  entry  upon  the  records  of  the  com-t  in  said  county,  as 
of  the  day  preceding,  "  That  the  district  court  of  Scott 
county  having  been  adjourned,  this  court  proceeded  with 
the  business  in  Clinton." 

We  think  that  the  power  exercised  by  the  judge  of  the 
district  court,  in  this  instance,  is  not  warranted  by  the 
statute,  and  might  tend  to  great  injustice,  by  prejudicing 
the  legal  rights  of  suitors.  The  powers  conferred  by  this 
special  statute  are  great  enough,  as  expressly  given,  without 
extending  them  by  implication  still  further,  so  as  to  dis- 
pense with  well  established  principles  of  practice,  which 
are  essential  to  a  just  observance  of  the  rights  of  parties 
in  com't.  Citizens  are  presumed  to  know  the  law  of  the 
land,  and  they  are  required  to  act,  in  the  adjustment  of 
their  business,  with  a  reference  to  its  demands.  The 
general  law  appointing  the  time  and  term  for  holding  the 
court  in  Clinton  county,  fixes  the  time  for  the  commence- 
ment of  the  term — on  the  second  Monday  after  the  fourth 
Monday  in  April,  and  first  Monday  after  the  fourth  Mon- 
day in  September;  and  the  term  is  thereby  ended  on  the 
Wednesdays  succeeding  those  Mondays  in  each  year  :  on 
the  Thursdays  immediately  following,  the  court  commences 
in  Scott  county. 

The  act  of  January  22,  1848,  vests  the  judge  with  power 
to  adjourn  the  courts  required  to  be  held  at  the  regular 
terms  above  named,  and  to  hold  special  terms  in  lieu 
thereof;  to  hold  special  terms  in  the  district,  when  in  his 
opinion  it  becomes  necessary  for  the  public  interests ;  and 
for  the  like  cause,  to  adjourn  the  regular  term,  in  any  one 


DUBUQUE,  JULY,  1850.  567 

Grable  v.  The  State. 

coiiniy,  and  hold  a  special  term  in  lieu  thereof.  The 
fourth  section  of  this  act,  when  such  special  term  is  held, 
makes  it  the  duty  of  the  judge  to  provide  for  the  trial  of 
criminal,  civil  and  chancery  business,  to  order  process,  &c., 
returnable  to  said  term,  &c. ;  and  in  all  such  cases,  the 
order  of  the  judge  calling  the  special  court  shall  specify 
the  nature  and  character  of  the  business  to  be  transacted 
at  said  special  term.  This  statute,  properly  construed, 
certainly  does  not  dispense  with  the  usual  notice  to  those 
interested,  informing  them  that,  instead  of  appearing  for 
trial  at  the  regular  term  of  the  court,  they  will  be  required 
to  appear  at  the  special  one.  It  cannot  be  that,  at  the 
last  hour  of  the  last  day  of  the  term,  as  fixed  by  law,  the 
judge  is  authorized,  by  an  act  of  his  own  will,  to  deter- 
mine that  the  court  in  one  county  shall  be  continued  in 
session  for  business  so  as  to  occupy  the  time  set  apart  by 
the  law  of  the  land  for  holding  the  court  in  another  county 
of  the  same  district,  in  which  he  is  appointed  to  preside. 
Such,  we  think,  was  not  the  intention  of  the  legislature. 
Such  a  power  is  not  expressly  given.  It  will  not  be 
implied,  for  the  manifest  reason  that  surprise  and  con- 
sequent injustice  might  be  done  to  parties  litigant. 
Parties  whose  causes  would  not  be  reached  in  the  order  of 
trial  on  Wednesday  evening,  being  the  last  day  of  the 
regular  term,  and  who  after  nightfall  would  depart  for 
their  homes,  satisfied  of  the  fact  that  the  term  was  ended, 
would  be  liable,  by  such  a  determination  of  the  judge, 
suddenly  made  and  carried  into  execution,  to  have  their 
rights  disposed  of  in  their  absence,  without  the  presence  of 
themselves  or  witnesses,  and  without  a  hearing.  If  the 
judge  could  in  this  way  disregard  the  termination  of  the 
district  court  in  Clinton  county,  and  the  commencemelit 
of  the  term  in  Scott  county  as  fixed  by  law,  in  one  case,  he 
could  in  all.  But  the  order  of  adjournment  of  the  Scott 
county  court  was  made  on  Friday,  one  day  after  the  time 
fixed  by  law  for  holding  it  had  commenced  to  run  ;  when 
this  fact  was  presented  as  an  objection  to  the  proceeding 
in  the  cause,  on  the  motion  to  arrest  the  judgment.     The 


568  SUPREME  COURT  CASES, 

Reed  v.  Murphy  &  Burke. 

adjournment  of  the  court  in  Scott  county  was  then  ordered 
to  he  entered  as  of  Thursday,  the  day  previous,  nunc  pj^o 
tunc,  and  the  motion  overruled.  We  are  of  the  opinion 
that  this  ruling  of  the  court  was  clearly  erroneous.  From 
the  constitution  of  our  judicial  system,  it  is  apparent 
that  the  court  cannot  be  held  in  two  counties,  in  the 
same  district,  on  the  same  day,  by  one  and  the  same  judge. 
The  special  statute  empowers  the  judge  of  that  district  to 
adjourn  the  court  in  any  county  from  the  regular  term  to 
any  other  time,  for  the  convenience  of  the  public  ;  but 
it  does  not  dispense  with  the  proper  order  of  procedure 
as  to  notice.  The  term  in  Clinton  county  having  expired 
on  Wednesday  evening,  and  that  in  Scott  having  com- 
menced on  Thursday,  by  operation  of  law,  the  judge  could 
not,  by  the  making  of  an  order  of  adjournment  nunc  pro 
tunc,  on  Friday  following,  legalize  the  proceeding.  See 
Archer  v.  Scott,  2  Scam.,  303;  Davis  v.  Fish,  1  G. 
G-reene,  406. 

The  error  assigned  as  to  the  form  of  the  judgment  and 
sentence  thereon,  though  not  in  conformity  with  the  law, 
need  not  be  noticed,  as  the  proceedings  must  be  reversed. 

Judgment  reversed. 

W.  E.  Leffingmell  and  E.  Cook,  for  plaintiff  in  error. 

Flatt  Smith,  for  the  state. 


REED  V.  MURPHY  &  BURKE. 

The  supreme  court  is  not  authorized  to  grant  an  injunction  upon  original 
petition  ;  but  each  judge  of  that  court  in  liis  separate  capacity  is  em- 
powered to  grant  injunctions. 

In  Equity.     Appeal  feom  Jones  Distkict  Court. 

Opinion  by  Greene,  J.     In  this  case   an  injunction 
was  granted  by  a  judge  of  the  supreme  court.     The  writ 


DUBUQUE,  JULY,  1850.  5^9 

Reed  c.  Murphy  &  Burke. 

was  made  returnable  to  the  district  court  of  Jones  county. 
On  motion  in  tliat  court,  the  injunction  was  dissolved,  on 
the  ground  that  the  judge  granting  the  same  had  no  juris- 
diction in  the  case.  To  support  this  decision,  the  constitu 
tion  of  the  state  in  defining  the  powers  of  the  supreme 
court  is  relied  upon.  It  provides  that  this  court  "  shall 
have  appellate  jurisdiction  only  in  all  cases  in  chancery, 
and  shall  constitute  a  court  for  the  correction  of  errors  at 
law,  under  such  restrictions  as  the  general  assembly  may 
by  law  prescribe.  The  supreme  court  may  have  power 
to  issue  all  writs  and  process  necessary  to  do  justice  to 
parties,  and  exercise  a  supervisory  control  over  all  inferior 
judicial  tribunals,  and  the  judges  of  the  supreme  com-t 
shall  be  conservators  of  the  peace  throughout  the  state." 
Art.  6,  §  3. 

It  is  very  clear  that  under  this  clause  the  supreme  court 
has  no  original  jurisdiction  over  any  case ;  that  the  powors 
of  the  com't  are  merely  of  an  appellate  and  supervisory 
character,  and  do  not  extend  to  the  allowance  of  an  in- 
junction upon  an  original  application ;  but  it  does  not 
therefoj'e  follow  that  the  judges  of  that  court,  in  their 
separate  capacity,  may  not  be  invested  with  authority  which 
the  constitution  does  not  confer  upon  them  as  a  court. 
When  acting  as  a  court  the  co-operation  of  at  least  two  of 
the  judges  is  necessary ;  still,  by  the  clause  above  quoted, 
the  judges  are  individually  authorized  to  be  conservators 
of  the  peace,  not  as  a  court,  but  when  detached  from  their 
court,  as  judges  of  the  state.  Separately,  each  judge 
may  administer  oaths,  take  acknowledgments,  and  do 
other  original  acts  from  which  they  are  restrained  in  their 
collective  capacity  as  a  court.  Severally,  they  may,  by 
virtue  of  their  office,  and  to  the  extent  authorized  by 
statute,  act  and  decide  originally  upon  an  application ; 
but  jointly,  as  a  court,  they  can  only  act  in  an  appellate 
and  supervisory  capacity. 

It  is  provided  by  statute,  that  "  the  several  district 
courts,  or  any  judge  of  the  supreme  com-t  in  vacation,  may 
grant  writs  of  injunction  in  cases  allowed  by  the  general 
^OL.  11.  ,  37 


570  SUPREME  COURT  CASES, 

Graft  V.  Diltz. 

usages  of  courts  of  equity."     This  by  no  rule  of  construc- 
tion can  be  regarded  as  in  conflict  with  the  constitution. 

As  the  injunction  in  this  case  was  not  aUowed  by  the 
supreme  court,  but  by  a  judge  of  that  com-t  in  vacation, 
we  conchide  that  the  court  below  erred  in  dissolving  the 
injunction  for  that  cause. 

Judgment  reversed. 

P.  Smit/i,  for  plaintiff  in  error. 

John  P.  Cook,  for  defendants. 


GRAFT  V.  DILTZ. 


In  a  case  tried  in  the  district  court  on  appeal  from  a  justice,  it  is  error  to 
receive  notes  in  evidence  tliat  were  not  marked  as  filed  by  the  justice,  nor 
in  any  way  identified  by  his  transcript. 

Error  to  Jones  District  Court. 

Opinion  hy  Williams,  C.  J.  This  suit  was  commenced 
before  a  justice  of  the  peace  in  Jones  county.  Judgment 
was  entered  against  Graft  the  defendant  by  default,  for 
$25.68,  with  interest  and  costs.  Defendant  took  his  ap- 
peal to  the  district  court.  The  cause  was  tried  at  April 
term,  1850,  and  a  verdict  rendered  for  the  plaintiff  for 
$25,  for  which  sum  judgment  was  entered.  On  the  trial 
in  the  district  court,  several  exceptions  were  taken  to 
the  rulings  of  the  judge,  by  the  defendant,  in  which  error 
is  here  assigned.  There  are  four  assignments  of  error,  but 
as  the  plaintiff  has  relied  on  only  one  of  these  for  a  reversal 
of  the  judgment,  it  is  not  necessary  that  the  others  should 
be  considered.  This  assignment  is,  that  "  the  court  erred 
in  overruling  the  defendant's  objection  to  the  notes  offered 
m  evidence." 

The  plaintiff  below  offered  in  evidence  two  promissory 


DUBUQUE,  JULY,  1850.  571 


Graft  V.  Diltz. 


notes,  the  one  calling  for  $15.50,  and  the  other  for  $8, 
signed  by  the  defendant  Graft.  They  were  offered  to 
prove  and  establish  the  plaintiff's  cause  of  action.  The 
defendant  urged  his  objection  to  the  notes  as  evidence,  on 
the  ground  that  they  had  not  been  marked  as  filed  in  the 
case  by  the  justice,  nor  is  there  any  statement  of  either 
of  them  in  the  certified  record  of  the  case.  That  there- 
fore they  could  not  be  ascertained  as  showing  the  same 
cause  of  action  which  was  tried  by  the  justice.  This 
objection  was  overruled  by  the  court,  and  the  notes  were 
read  in  evidence  to  the  jury.  This  ruling,  we  think,  was 
erroneous. 

In  deciding  this  question,  it  is  only  necessary  to  turn 
to  the  statute  enacted  for  the  direction  of  justices  on  the 
subject,  and  it  is  easily  adjusted.  The  intention  of  the 
legislature  is  manifest.  Rev.  Stat.,  314,  §  1,  provides, 
"  Every  justice  of  the  peace  shall  keep  a  docket,  in  which 
he  shall  enter  a  brief  statement  of  the  nature  of  the  plain- 
tiff's demand,  and  the  amount  claimed;  and  if  any  set-off 
was  pleaded,  a  similar  statement  of  the  set-off,  and  the 
amount  claimed." 

Section  2,  p.  315,  is  as  follows  :  "  The  several  items  in 
the  preceding  section  enumerated,  together  with  all  the 
other  entries  specially  required  by  this  act  to  be  made 
in  the  docket,  shall  be  entered  under  or  opposite  to  the 
title  of  each  cause  to  which  they  respectively  relate,  and 
in  addition  thereto,  the  justice  may  enter  any  other  pro- 
ceedings had  before  him  in  the  cause  which  he  may  think 
it  useful  to  enter  in  such  docket." 

Section  4  provides,  that  "  in  all  cases  to  be  tried  before 
a  justice  of  the  peace,  the  plaintiff,  when  he  commences 
his  suit,  shall  set  forth  ^V^  writmg,  and  file  with  the  jus- 
tice before  the  suit  is  placed  upon  the  docket,  or  i)rocess 
issued  thereon,  a  plain  statement  of  his  demand  or  cause 
of  action."  Here  it  is  apjiarent  that,  for  obvious  reasons, 
it  is  made  the  duty  of  a  justice  of  the  peace  to  keep  a 
docket,  and  enter  therein,  in  each  case,  the  nature  of  the 
plaintiff's  demand,  and  the  amount  claimed.     The  second 


572  SUPREME  COURT  CASES, 

Graft  V.  Diltz. 

section  also  refers  to  the  subject  matter  of  the  entries,  and 
treats  of  them  as  being  specially  required  to  be  made  in 
the  docket.  The  fourth  section  requires  in  specific  terms, 
that  at  the  commencement  of  the  suit,  the  plaintiff  shall 
set  forth  in  writing,  andj^/e  with  the  justice  before  the 
entry  of  the  case,  or  the  issuance  of  the  process,  a  plain 
statement  of  his  demand  or  cause  of  action.  The  statute, 
moreover,  requires  the  district  court  upon  an  appeal,  to 
try  the  same  cause  of  action  that  was  tried  before  the 
justice,  and  no  other.  Rev.  Stat.,  335,  §  15.  These  pro- 
visions are  express  and  conclusive,  and  dispose  of  the 
question  at  bar.  There  is  no  room  for  implication.  The 
observance  of  them  by  the  justice,  in  order  to  the  proper 
legal  procedure,  is  imperative ;  without  a  compliance  with 
them  there  would  be  nothing  certain,  by  which  the  iden- 
tity of  the  cause  of  action  before  the  justice,  and  that 
before  the  district  court  on  the  appeal,  could  be  established. 
Some  entry  in  tlie  docket,  and  filing  of  a  documentary 
statement  of  the  demand,  is  necessary  for  the  purpose  of 
showing  jurisdiction.  If  this  were  dispensed  with,  fraud 
and  great  injustice  might  be  the  result.  A  plaintiff  might 
bring  his  suit  before  the  justice  for  one  demand,  and  upon 
failure  to  recover  there,  take  his  appeal,  and  on  the 
trial  in  the  district  court  resort  to  another,  to  sustain  his 
action ;  or  the  case  might  commence  in  the  justice's  court 
on  a  very  small  scale,  and  being  appealed,  by  the  time  it 
would  be  brought  forth  for  trial  in  the  district  court,  it 
might  assume  great  magnitude.  The  design  of  the  statute 
is  to  secure  identity,  and  prevent  this  oppressive  expan- 
sion in  litigation.  In  the  case  at  bar,  there  is  no  mention 
made  in  the  certified  transcript  of  the  justice's  record  of 
the  notes  whicli  were  offered  in  evidence ;  nor  is  there  any 
indorsement  upon  either  of  them,  to  shov>^  that  they  had 
been  filed  with  the  papers  of  the  case  when  it  was  before 
the  justice.  There  is  no  official  recognition,  or  designa- 
tion of  them  by  the  justice,  or  otherwise,  by  which  they 
could  be  identified  as  the  cause  of  this  action  when  before 
the  justice.     This  being  the  state  of  the  case,  the  district 


DUBUQUE,  JULY,  1850.  573 

Graft  V.  Diltz. 

court  erred  in  permitting  tliem  to  go  to  the  jury  to  sustain 
the  phiintiif's  action.  This  court  heretofore  has  decided 
where  the  transcript,  as  certified  to  the  district  court  on 
appeal,  contained  an  imperfect  description  of  the  instru- 
ment which  was  offered  in  evidence,  to  maintain  tlie  action ; 
but  where  the  instrument  itself  was  duly  indorsed,  with 
day  and  date,  *'  filed,"  and  the  signature  of  the  justice 
officially  annexed  attesting  it,  that  this  was  sufficient  in 
identification  of  the  cause  of  action.  This,  we  think,  was 
going  quite  far  enough.  It  has  been  urged  here,  that  the 
notes  were  found  among  the  papers  of  the  case  in  the  dis- 
trict court,  which  had  been  sent  up  by  the  justice.  This 
may  be  so,  and  still  this  fact  cannot  be  substituted  for 
those  required  by  the  statute.  If  this  were  all  that  might 
be  required,  the  most  ample  opportunity  would  be  afforded 
to  practise  the  impositions  and  perpetrate  the  wrongs 
which  the  legislature  intended  to  prevent.  If  the  legis- 
lature had  not  guarded  this  matter  by  such  particular  and 
express  provision,  it  would  be  necessary  that  some  way 
should  be  adopted,  in  accordance  with  legal  practice,  by 
which,  on  appeal,  the  subject  matter  of  the  action,  and  the 
amount  claimed,  should  be  made  to  appear,  to  show  the 
justice  who  tried  the  cause  had  acted  within  his  jurisdic- 
tion. Although  in  view  of  the  necessity  that  exists,  in 
cases  of  this  kind,  to  look  with  some  indulgence  uj)on 
proceedings  had  before  justices  of  the  peace,  as  to  the 
manner  and  form  in  which  entries  required  by  law  may 
be  made,  still  we  cannot  approve  of  and  justify  an  entire 
omission  of  a  matter  so  vital  to  the  administration  of  law 
and  justice. 

Judgment  reversed. 

P.  ^  J.  M.  Smith,  for  plaintiff  in  error. 

J.  P.  Cook.,  for  defendant. 


574  SUPEEME  COURT  CASES, 

Reed  v.  Murphy. 


EEED  V.  MURPHY  et  al. 

Where  a  person  contracted  to  receive  a  share  of  the  profits  in  a  business  aa 
a  compensation  for  services  and  rent  of  a  building,  with  no  other  privi- 
lege, and  none  of  the  responsibilities  of  a  partner,  it  was  held  that  he  was 
not  a  partner. 

Ereor  to  Jones  District  Court. 

Opinion  by  GtReene,  J.  Assumpsit  by  the  firm  of 
Mnrphy  &  Bm'k  against  Calvin  C.  Reed.  Verdict  and 
judgment  for  the  plaintiffs.  There  is  but  one  point  urged 
in  error  which  we  deem  worthy  of  consideration.  On  the 
trial  Henry  Mahan  was  admitted  as  a  witness  in  behalf  of 
the  plaintiff.  But  it  was  claimed  that  he  was  interested 
as  a  partner  with  Murphy  &  Burk  and  therefore  incom- 
petent. In  support  of  that  position,  a  contract  was  ad- 
duced in  which  Mahan  agreed  to  rent  his  house,  with  the 
store  fixtures,  to  Murphy  &  Burk  for  one  year,  in  con- 
sideration of  their  paying  him  one  dollar,  and  occupying 
the  building  for  a  store,  and  giving  him  one  fourth  of  the 
profits,  if  any  remained  after  deducting  all  the  expenses  of 
the  establishment.  And  he  also  agreed  to  devote  all  his 
time  and  attention  to  the  business  of  the  plaintiffs.  It 
appeared  that  Murphy  &  Burk  purchased  the  goods  and 
furnished  the  store  on  their  own  account ;  that  it  was 
understood  between  them  that  Mahan  was  employed  as 
agent,  to  be  paid  for  his  services  out  of  a  portion  of  the 
profits.  The  court  charged  the  jury  that  this  contract  did 
not  constitute  a  partnership  between  the  plaintiffs  and  the 
witness. 

We  think  the  court  correctly  instructed  the  jury  that 
such  a  contract  does  not  create  a  partnership.  Mahan's 
connection  with  the  business  was  not  that  of  a  partner ; 
he  had  no  specific  interest  or  control  in  the  business  such 
as  a  partner  ordinarily  enjoys  ;  no  sliare  of  the  profits  as 
profits  ;  but  merely  in  the  event  that  profits  accrued  he 
should  receive  a  certain  portion  of  them  as  compensation 


DUBUQUE,  JULY,  1850.  575 

Davis  V.  Curtis. 

for  services  rendered  as  agent  or  clerk,  and  not  as  partner. 
This  question  was  examined  in  Price  ^  Co.  v.  Alexander 
^  Co.*  and  under  the  views  expressed  in  that  case  it  is 
obvious  that  a  person  in  business  may  employ  another  as 
agent  or  othei'wise,  and  agree  to  pay  him  a  share  of  profits, 
if  any  shall  arise,  as  a  compensation  for  his  services, 
without  giving  such  person  the  rights,  or  subjecting  him 
to  tlie  liabilities,  of  a  partner.  In  Burckle  v.  Eckart,  1 
Denio,  337,  a  mercantile  firm  employed  a  thii'd  person  to 
purchase  and  forward  produce  under  orders  of  the  firm, 
and  have  as  a  compensation  for  his  services  one  fourth  of 
the  profits  arising  out  of  the  purchase  and  sale  of  produce ; 
and  it  was  held  that  the  person  thus  employed  was  not  a 
partner  in  that  business  even  in  respect  to  third  parties. 
The  authorities  show  many  exceptions  to  the  general  rule 
that  a  communion  of  profits  will  make  men  partners  and 
liable  for  losses  ;  and  we  think  no  exception  is  better  re- 
conciled to  the  cases  or  more  distinctly  marked  than  the 
present. 

Judgment  affirmed. 

John  P.  Cook,  for  plaintiff  in  error, 

Wilson  ^  Smith,  for  defendants. 


DAVIS  V.  CURTIS. 


Where  a  case  !■  taken  to  the  district  court  by  certiorari,  and  the  judgment 
of  the  justice  is  reversed,  it  is  error  to  order  a  trial  de  novo  in  the  district 
court. 

Ereor  to  Jackson  District  Court. 

Opinion  by  Williams,  C.  J.     This  suit  was  commenced 
before  a  justice  of  the  peace  in  Jackson  county,  by  the 

*  Anue,  427. 


576  SUPREME  COURT  CASES, 


Davis  V.  Curtis. 


plaintiff  Curtis  on  an  account  in  assumpsit  against 
I)avis.  Judgment  was  entered  by  the  justice  in  favor 
of  the  plaintiff  for  $15.50,  with  interest  and  costs,  on 
the  20th  of  June,  1849.  On  the  7th  of  July  of  the 
same  year,  Davis  the  defendant  sued  out  a  certiorari 
under  the  provision  of  the  statute,  whereupon  the  cause 
was  removed  to  the  district  court,  and  heard  at  May 
term,  1850.  The  judgment  of  the  justice  was  there  re- 
versed, and  an  order  for  a  new  trial  in  the  district  court, 
and  the  cause  was  continued  for  that  purpose.  The  de- 
fendant Davis  took  exception  to  the  action  of  the  court 
by  which  a  new  trial  in  the  district  court  was  ordered. 

The  only  question  for  decision  here  is,  whether,  in  a  pro- 
ceeding under  the  certiorari  laW  of  this  state,  the  district 
court  can,  upon  the  reversal  of  the  judgment  of  a  justice 
of  the  peace,  order  the  cause  to  a  new  trial  before  itself  ? 

The  act  of  the  legislature  regulating  the  writ  of  certio- 
rari, passed  February  9,  1844,  authorizes  "  any  person 
who  shall  conceive  himself  injured  by  error  in  any  process, 
proceeding,  judgment  or  order,  given  by  any  justice  of 
the  peace,  may  remove  such  judgment  to  the  district  court 
for  the  same  county,  at  any  time  within  twenty  days  from 
the  rendition  of  such  judgment,"  by  certiorari. 

The  second  section  requires  the  apj^licant  for  the  writ, 
his  agent  or  attorney,  to  file  in  the  office  of  the  clerk  of  the 
district  court  for  the  proper  county,  an  affidavit  stating 
that  in  his  belief  there  is  error  in  such  judgment,  (setting 
forth  the  ground  of  error  alleged ;)  that  the  apj)lication  is 
made  in  good  faith;  and  requires  him  to  make  and  execute 
a  bond,  with  one  or  more  sufficient  sureties,  to  the  oppo- 
site party,  to  be  approved  by  the  clerk,"  &c.  It  is  made 
the  duty  of  the  clerk  thereupon  '^  to  issue  a  writ  oi  certio- 
rari, commanding  the  justice  who  rendered  such  judgment 
to  make  return  to  the  district  court  of  his  proceedings  as 
to  all  the  facts  contained  in  such  affidavit." 

The  third  section  provides,  that  "  on  the  service  of  writ 
of  certiorari  to  reverse  a  judgment  as  aforesaid,  it  shall  be 
the  duty  of  the  party  serving  the  same,  to  deliver  at  the 


DUBUQUE,  JULY,  1850.  577 

Davis  V.  Curtis. 

same  time  to  the  justice  a  copy  of  the  affidavit  on  which 
the  certiorari  was  procured,  &c. ;  and  the  justice  is  required 
to  file  his  return  with  the  clerk  of  the  district  court  within 
five  days  after  the  service  of  the  writ." 

The  fifth  section  is  as  follows  :  "  The  district  court  shall 
after  hearing  the  case  give  judgment,  as  the  right  of  the 
matter  may  appear,  without  regarding  technical  omis- 
sions, imperfections  or  defects,  in  the  proceedings  before 
the  justice,  which  did  not  affect  the  merits  ;  and  may 
afr.iin  or  reverse  the  judgment  in  whole  or  in  part,  and 
may  issue  execution  as  upon  other  judgments  rendered 
before  said  court."     Rev.  Stat.,  art.  9,  p.  336. 

We  have  set  forth  the  substance  of  the  enactment  on 
the  subject  of  certiorari^  so  far  as  the  same  can  be  con- 
sidered as  affecting  the  question  before  us.  As  some 
diversity  of  opinion  in  relation  to  the  powers  and  duties 
of  the  district  court,  in  its  procedure  under  this  law, 
has  hitherto  existed,  we  will  endeavor  to  establish  the 
practice,  by  giving  it  a  construction  which  will  operate 
in  consistency  with  jurisprudence  and  the  design  of  the 
leo-islature. 

The  justices'  act,  art.  8,  in  relation  to  "  appeals  and 
proceedings  thereon  in  the  district  court,"  provides  that 
"  any  person  aggrieved  by  any  judgment  or  decision  of  a 
justice  of  the  peace,  may,  in  person  or  by  his  agent,  make 
his  appeal  therefrom  to  the  district  court  of  the  same 
county  where  the  judgment  was  rendered,  or  the  decision 
made."     Rev.  Stat.,  p.  333. 

This  act  requires  the  appeal  to  be  made  within  twenty 
days  after  the  decision.  The  seventh  section  clearly  con- 
templates and  provides  for  a  full  trial  de  novo  in  the  dis- 
trict court  upon  the  merits.  It  is  as  follows :  "  Upon  the 
return  of  the  justice  being  filed  in  the  clerk's  office,  the 
court  shall  be  possessed  of  the  cause,  and  shall  proceed  to 
hear,  try  and  determine  the  same  anew,  without  regarding 
any  error,  defect  or  other  imperfection  in  the  proceedings 
of  the  justice." 
t;Here  then  the  legislature  have,  in  the  most  ample  pro- 


578  SUPREME  COURT  CASES, 

Davis  V.  Curtis. 

vision  by  appeal,  afforded  to  a  party  who  may  be  aggrieved 
by  the  judgment  of  a  justice,  an  opportunity  for  redress 
in  the  district  court,  by  a  trial  anew  on  the  merits  of  his 
case.  This  provision,  and  that  for  the  writ  of  certiorari, 
stand  as  articles  8  and  9  of  the  same  act.  The  article 
on  appeals  precedes  the  other  in  the  arrangement  of 
the  law.  Being  each  a  part  of  the  same  act,  it  can 
hardly  be  presumed  that  two  separate  provisions  would 
thus  be  made  to  have  the  same  effect,  and  for  the  same 
purpose.  Reason,  we  think,  dictates  that  each  was  in- 
tended for  a  distinct  purpose,  in  order  to  different  pro- 
cedure, and  judgment  in  the  district  court..  The  pro- 
visions of  the  certiorari  law  forbid  the  conclusion  tliat  it 
was  intended  to  operate  as  an  appeal  on  the  merits,  to  be 
tried  de  novo  in  the  district  court.  If  such  were  the  inten- 
tion of  the  legislature,  why  not  provide  for  the  hearing 
of  the  testimony  of  the  case  at  the  first  term  to  which 
the  writ  is  made  returnable,  and  thus  supersede  the 
necessity  of  the  delay  by  a  continuance  of  the  cause  to 
another  term  of  the  court  in  case  of  a  reversal,  as  in  the 
case  at  bar?  These  considerations,  with  others  on  the 
score  of  great  inconvenience  and  vexation  to  the  parties, 
as  well  as  the  public,  tend  strongly  to  negative  the  idea 
that  this  proceeding  should  operate  so  as  to  try  the  right 
of  the  matter  in  controversy  between  the  parties  as  upon 
appeal.  But  strong  as  these  considerations  may  be,  we 
are  not  under  the  necessity  of  relying  upon  them  alone 
for  a  construction  of  this  enactment,  as  to  the  powers  and 
duties  of  the  district  court  under  it.  We  think  the  fifth 
section  above  quoted  is  sufficiently  explicit  in  prescribing 
the  mode  of  procedure  for  the  district  court.  After  hear- 
ing the  case,  the  court  is  required  to  "  give  judgment  as  the 
rigid  of  the  matter  may  appear,  without  regarding  tech- 
nical omissions,  imperfections  or  defects  in  the  i)roceed- 
ings  before  the  justice,  nhich  did  not  affect  the  merits,  and 
may  o^rwi  cr  r<?2;ers6  the  judgment  in  whole  or  in  part." 
"What  is  the  case  upon  hearing  by  this  v/rit  ?  Clearly 
that  which  is  prescribed  only  by  the  transcript  of  the 


DUBUQUE,  JULY,  1850.  579 

Davis  V.  Curtis. 

justice,  and  return  made  in  response  to  the  allegations  of 
error,  as  contained  in  th'e  affidavit  filed. 

The  matter,  the  right  of  which  is  to  dictate  the  judgment 
of  the  court,  is  that  of  the  case  as  made  up  by  the  return 
of  the  justice,  as  certified  by  him.  The  writ  of  certiorari 
is  expressly  given  only  to  correct  the  "  process,  proceed- 
ings, judgment  or  orders  "  of  justices  of  the  peace.  Tlien 
they  can  only  be  the  legal  and  conclusive  acts  of  the 
justice,  arising  from  the  facts  of  the  case  as  considered  b}' 
liim,  and  which  appear  in  his  certified  return,  that  consti- 
tute the  case  as  it  is  in  the  district  court.  This  is  the 
case,  the  merits  of  whicli,  as  to  the  right  of  the  matter  there 
presented  for  legal  adjudication,  are  not  to  be  prejudiced  or 
fatally  afi'ected  by  "  technical  omissions,  imperfections  or 
defects  of  proceeding  before  the  justice."  The  terms  used 
in  the  statute,  with  sufficient  perspicuity,  designate  only 
a  proceeding  by  the  district  court  in  order  to  revise  and 
correct  in  a  legal  manner  the  "  process,  proceedings, 
judgments  or  orders  "  of  justices  of  the  peace.  The  pro- 
ceeding by  apj)eal  introduces  the  case  to  the  district  court 
on  its  merits,  to  be  tried  de  novo,  in  law  and  in  fact.  The 
proceeding  by  certiorari  takes  the  case  up  to  be  revised 
and  re-adjudicated  as  to  the  right  in  matter  of  law  only. 

The  order  of  the  district  court  reversing  the  judgment 
of  the  justice  is,  under  the  statute,  well  enough.  But  by 
ordering  that  a  new  trial  should  be  had  in  that  court,  and 
continuing  the  cause  for  trial  there,  we  think  the  court 
transcended  its  powers,  and  therefore  erred.  The  fifth  sec- 
tion of  the  certiorari  law  expressly  directs,  "that  after 
hearing  the  case,"  &c.,  the  court  "may  affirm  or  reverse 
the  judgment  in  whole  or  in  part."  Here  the  duty  of  the 
court  is  plainly  defined.  This  done,  all  proceeding  on 
trial  in  virtue  of  that  writ  was  at  an  end.  Being  a  pro- 
ceeding created  by  statute,  giving  jurisdiction  to  that 
court  for  special  purposes,  so  soon  as  the  force  and  effect 
of  the  provisions  thereof  liad  been  accomplished  by  the 
judgment  of  reversal,  no  further  power  remained  with  the 
court  but  tliat  of  issuing  an  execution,  "  as  upon  other 


580  SUPREME  COURT  CASES, 

Davis  V.  Curtis. 

judgments  rendered  before  said  court."  There  are  but 
two  ways  in  which  the  district  court,  as  constituted,  can 
become  possessed  of  a  case,  so  as  to  exercise  thorough 
jurisdictional  power  to  try  and  determine  causes  to  final 
judgment  on  the  whole  merits,  in  law  and  fact,  in  the 
same  hearing.  The  one  is  where  the  proceeding  apper- 
tains to  its  original  jurisdiction,  and  the  other  is  by  appeal 
from  an  inferior  tribunal.  Without  express  statutory  pro- 
visions to  that  effect,  the  court  could  not  assume  the 
jm-isdiction  to  force  the  parties  to  a  certiorari  proceeding 
into  a  trial,  in  the  nature  of  an  appeal,  in  its  own  forum. 
The  case  was  there  to  be  disposed  of  in  compliance  with 
the  statute  providing  for  writs  of  certiorari.  When  so 
disposed  of,  the  parties  were  left  to  such  further  procedure 
in  the  matter  as  they  might  elect  under  the  law. 

It  has  been  urged,  that  in  this  view  of  the  certiorari 
law  there  is  difficulty,  because  it  provides  that  the  judg- 
ment of  the  justice  may  be  reversed  in  whole  or  in  part, 
and  that,  in  that  event,  a  proceeding  de  novo,  or  by  pro- 
cedendo before  the  justice,  would  be  embarrassed,  and 
perhaps  impracticable.  To  this  we  answer,  that  the  sam^ 
objection  is  alike  applicable  to  the  hearing  anew  in  the 
district  court.  But  such  a  case  could  not  well  occur,  ex- 
cept where  the  part  quashed  or  reversed  is  independent 
of  and  unconnected  with  that  affirmed.  Commonwealth  v. 
Carpenter,  3  Mass.,  268 ;  Same  v.  Blue  Hill  Turnpike,  5 
ih,,  420  ;  Same  v.  Derby,  13  ib.,  438  ;  Same  v.  West  Bos- 
ton Bridge,  13  Pick.,  195  ;  Nicholl\.  Patterson,  4  Ham., 
200;  Williams  v.  Sherma7i,  15  John.,  195;  Bunson  v. 
Mann,  13  John.,  461.  In  some  of  the  states,  Tennessee, 
North  Carolina  and  Alabama,  where  by  statute  a  certiO' 
rari  is  considered  in  the  nature  of  a  substitute  for  an  ap- 
peal, the  party  may  have  a  right  to  a  new  trial  in  the  court 
above,  both  as  to  the  law  and  the  facts.  However,  in  New 
York,  where  the  statute  providing  for  this  wiit  is  in  the 
main  similar  to  ours,  it  has  been  decided  that  the  court 
has  no  power  to  remand  proceedings  in  civil  cases,  but 
must  reverse  them  in  toto  if  erroneous ;  and  that  new  pr-^- 


DUBUQUE,  JULY,  1850.  581 

Davis  V.  Curtis. 

ceedings  must  be  commenced  in  the  inferior  tribunal.  10 
Wend.,  167.  In  the  statute  of  this  state,  the  power  of  the 
revising  court,  as  well  as  the  mode  of  procedure,  is  clearlv 
designated.  The  matter  of  right,  in  law  and  fact,  of  the 
case  to  be  tried,  consists  in  the  certified  return  of  the  jus- 
tice, and  not  the  whole  of  the  testimony  adduced  on  the 
trial  before  him.  By  it  the  judgment  of  the  court  is  also 
expressly  dictated,  which  is  to  "affirm  or  reverse  in  whole 
or  in  part."  This  done,  the  power  to  issue  execution  re- 
mains to  be  exercised,  that  the  legitimate  effect  of  the 
judgment  may  be  attained.  The  statute  itself  creates  the 
power,  prescribes  the  mode  of  its  exercise,  and  its  extent. 
It  is  the  duty  of  the  court  to  expound  the  law,  when  made 
by  the  legislature,  without  assuming  to  aid  in  legislating. 
If  the  law,  as  it  is  found  to  exist,  be  productive  of  incon- 
venience to  parties  litigant,  the  difficulty  can  only  be 
remedied  by  an  appeal  to  the  legislative  power.  K,  how- 
ever, it  be  an  inconvenience  for  the  plaintiff  to  be  left  for 
the  ascertainment  and  recovery  of  his  rights,  upon  reversal 
of  his  judgment,  to  his  action  before  the  justice  anew,  he 
is  not  remediless,  and  is  only  made  to  suffer  the  conse- 
quences of  a  due ,  administration  of  the  law.  A7e  will  only 
add,  that  such  is  the  effect  of  the  proceeding  by  certiorari 
in  many  of  the  states,  in  like  cases. 

So  much  of  the  order  of  the  com't  as  directs  this  canse 
to  be  tried  anew  in  the  district  court  is  reversed,  and  the 
residue  of  the  judgment  affirmed. 

Wilson  ^  Smithy  for  plaintiff  in  error. 

P.  B,  Bradley  J  for  defendant. 


582  SUPREME  COURT  CASES, 


Coffin  V,  Knott. 


COFFIN  V.  KNOTT. 

A  general  demurrer  can  only  prevail  against  substantial  defects.  Under 
such  a  demurrer  no  advantage  can  be  taken  of  merely  formal  defects. 

In  an  action  of  replevin,  the  defendants  pleaded  in  substance  that  the 
plaintift'  had  previously  brought  an  action  of  trespass,  in  whicli  he  de- 
clared for  the  same  property,  against  the  same  parties,  in  which  ihey 
pleaded  a  release  executed  by  the  plaintiff  to  one  of  the  defendants;  that 
to  the  pleu  of  release  there  was  a  demurrer,  which  was  overruled,  and 
judgment  rendered  against  the  defendants  :  held  that  such  a  plea  is  good 
in  substance,  and  that  a  general  demurrer  to  it  should  be  overruled. 

A.  former  action  of  trespass  for  taking  goods  may  be  pleaded  in  bar  to  an 
action  of  replevin  for  the  same  goods  between  the  same  parties ;  and  it 
makes  no  difference  whether  the  judgment  in  the  trespass  suit  was  ren- 
dered upon  a  demurrer  or  a  verdict. 

A.n  admission  by  way  of  demurrer  to  a  plea,  in  which  the  facts  are  alleged, 
is  just  as  available  as  though  the  admission  had  been  made  ore  tenua 
before  a  jury. 

Error  to  Dubuque  District  Court. 

Opinion  by  Greene,  J.  Replevin  by  John  M.  Knott 
against  Albert  Coffin  for  two  mares  and  colts.  Several 
pleas  were  filed  by  defendant,  to  which  the  plaintiff  de- 
murred, and  the  demurrer  was  sustained.  It  is  now 
claimed  that  the  court  erred  in  sustaining  the  demurrer 
to  the  sixth  plea.  By  this  plea  it  appears  that  the  defend- 
ant purchased  the  mares  and  colts  of  James  Burr  et  al., 
June  1, 1849;  that  said  James  Burr  et  at.  took  said  property 
from  the  possession  of  the  plaintiff,  September  1,  1848;  tliat 
afterwards,  at  the  May  term  of  the  Clinton  county  district 
court,  said  plaintiff  impleaded  said  Burr  and  others  in 
"  an  action  of  trespass  for  taking  the  identical  same  goods 
and  chattels  mentioned  in  the  plaintiff's  declaration ; "  that 
in  May,  1849,  the  said  Burr  et  al.  pleaded  a  plea  of  release 
of  said  action  of  trespass ;  that  the  plaintiff  demurred  to 
the  plea,  and  the  demurrer  was  overruled  by  the  court, 
and  judgment  was  thereupon  rendered  in  favor  of  said 
Burr  et  al.^  as  defendants  in  the  suit ;  that  said  judgment 
remains  in  full  foi-ce  and  effect.      The  plea  concludes  with 


DUBUQUE,  JULY,  1850.  683 

Coffin  V.  Knott. 

a  prayer  for  judgment,  and  tliat  the  plaintiff  be  estopped 
from  maintaining  his  action  against  the  defendant. 

The  only  question  we  are  called  upon  to  decide  in  this 
case  is.  Did  the  court  err  in  sustaining  the  demurrer  to 
this  pica  ?  The  demuirer  is  general,  and  hence  can  only 
prevail  against  substantial  defects.  Without  regard  to 
form,  we  are  only  to  inquire.  Is  the  plea  good  in  substance? 
For  under  a  general  demurrer  no  advantage  can  be  taken 
of  imperfections  merely  formal.  Gould's  PL,  466,  468,  §§ 
15,  19;  Stephen  PL,  140;  E^an  v.  Watson,  2  GrcenL, 
382;  PatcMn  v.  Doolittle,  3  Vt.,  461. 

The  question  arises,  Are  the  substantial  facts  in  the  plea 
such  as  can  be  borne  down  by  a  general  demurrer  ?  The 
facts  set  forth  are,  that  the  plaintiff  in  this  replevin  suit 
had  previously  brought  an  action  of  trespass,  in  whicli  he 
declared  for  the  same  property,  against  the  same  parties  ; 
that  the  defendants  pleaded  a  release  executed  by  the 
plaintiff  to  one  of  the  defendants  in  bar  of  the  action; 
and  that  to  the  plea  of  release  there  was  a  demurrer,  which 
was  overruled,  and  judgment  rendered  on  the  plea  for  the 
defendants.  But  it  is  contended  that  the  judgment  in 
trespass  cannot  be  pleaded  in  bar  of  this  replevin  suit. 
Had  the  plaintiff  recovered  in  the  action  of  trespass,  it  is 
clear  that  he  would  have  been  entitled  to  the  value  of  the 
horses,  which  he  alleged  were  taken  and  converted  by  the 
defendants.  It  is  equally  clear  that  a  verdict  for  the  de  ■ 
fendants,  upon  an  issue  involving  the  right  to  the  property, 
would  vest  it  in  them.  Under  the  plea  it  might  have  been 
shown  that  the  right  to  the  property  was  necessarily  in- 
volved in  the  action  of  trespass.  Indeed,  the  plea  avers  ii. 
substance  that  the  matter  involved  in  the  trespass  suit, 
and  the  parties  thereto,  were  the  same  as  in  the  replevin 
suit.  Under  the  demurrer  these  averments  are  admitted 
to  be  true,  and  they  sufficiently  show  that  both  suits  were 
for  the  same  cause  of  action. 

It  is  not  necessary  that  both  actions  should  be  in  the 
same  form,  in  order  to  have  the  former  action  operate  as 
a  bar  to  the  record.    It  is  only  necessary  that  they  should 


584  SUPREME  COURT  CASES, 

Coffin  V.  Knott. 

affect  the  same  parties,  and  involve  the  same  matter,  or 
determine  the  same  cause  of  action.  Suits  will  he  re- 
garded in  this  light  when  the  same  evidence  will  support 
hoth  actions.  If  in  this  case  the  former  action  was  in- 
stituted to  recover  for  the  property,  as  well  as  for  the 
trespass  upon  it,  as  might  have  been  shown  under  the 
plea,  then  it  follows  that  the  same  evidence  would  he  ad- 
missible to  support  both  actions.  This  view  is  supported 
in  Eice  v.  Kinff,  7  John.,  20.  In  this  case  it  was  held  that 
a  former  judgment  in  trespass  for  taking  goods  will  bar 
a  subsequent  action  of  assumpsit  for  the  same  cause.  See 
also  Jolinsoii  v.  Smith,  8  John.,  383,  Phillips  v.  Berick, 
16  ib.,  136.  So  in  Gardner  v.  Buckbee^  3  Cow.,  120,  it  was 
held  that  this  rule  prevails,  whether  the  same  matter  be 
pleaded,  or  given  in  evidence  under  the  general  issue ;  and 
that  the  former  judgment  is  conclusive,  whether  it  appear 
upon  the  face  of  the  record  of  the  former  suit  that  the 
same  matter  was  tried  and  passed  upon  or  not. 

It  is  objected  by  defendant's  counsel,  that  judgment  in 
the  trespass  suit,  as  it  appears  by  the  plea,  was  rendered 
upon  a  demm'rer,  and  not  upon  a  verdict.  Still  the  prin- 
ciple and  effect  of  the  judgment  is  the  same.  The  same 
facts  were  involved  and  decided  by  the  demurrer  that 
could  have  been  decided  if  the  case  had  been  submitted  to 
a  jury.  It  can  make  no  difference  whether  the  facts  were 
proved  by  the  release  and  witnesses,  or  were  admitted  by 
the  pleadings.  It  is  decided  in  Bouchand  v.  Dias^ .  3 
Denio,  that  an  admission  by  way  of  demurrer  to  a  plea, 
in  which  the  facts  are  alleged,  must  be  just  as  available 
as  though  the  admission  had  been  made  ore  tenus  before 
a  jury. 

In  Gould's  PI.,  477,  §  43,  the  principle  is  laid  down  that 
a  judgment  rendered  upon  demurrer  is  as  conclusive  of 
the  facts  confessed  by  demurrer  as  a  verdict  finding  the 
same  facts  would  have  been.  We  are  not  advised  that 
this  principle  has  ever  been  questioned  by  any  respectable 
author.  It  is  obvious  that  the  facts  in  a  case  may  be 
equally  as  well  established  by  a  demurrer  as  they  can  be 


DUBUQUE,  JULY,  1850.  585 


Jacobson  v.  Manning. 


by  a  verdict ;  and  as  in  either  case  they  become  matter 
of  record,  they  should  never  be  again  contested  between 
the  same  parties. 

The  judgment  for  the  trespass  suit,  as  described  in  the 
sixth  plea,  must  be  regarded  as  conclusive  upon  all  matters 
which  might  have  been  litigated  in  that  action.  If  Knott 
had  recovered,  he  would  have  secured  the  value  of  the 
liorbcs. 

We  think,  then,  that  the  facts  stated  in  the  sixth  plea 
should  be  regarded  as  a  good  bar  to  the  action,  and  that 
the  court  erred  in  sustaining  the  demurrer  to  that  plea. 

Judgment  reversed. 

P.  Smith,  for  plaintiff  in  error, 

L.  Clark,  for  defendant. 


JACOBSON  V.  MANNING  et  al. 

A  bond  or  note  may  be  sued  in  tbe  manner  provided  by  the  practice  act 
without  a  declaration.     Rev.  Stat,,  476,  §  43. 

Error  to  Clinton  District  Court. 

Opinion  hy  Williams,  C.  J.  ^  Manning  &  Weld,  mer- 
chants, &c. ,  sued  Alfred  M.  Jacobson  in  the  district  court 
of  Clinton  county  on  a  promissory  note,  dated  October 
28,  1848,  for  the  sum  of  $777.83,  payable  four  months 
after  date.  The  suit  was  commenced  by  petition  as  pro 
vided  by  statute,  which  enacts,  "  That  when  -any  person 
holding  a  bond  or  note  for  the  direct  payment  of  property 
or  money,  shall  desire  to  put  the  same  in  suit,  he  may  do 
so  by  filing  the  same  with  the  clerk  of  the  district  court 
having  jurisdiction  thereof,  together  with  a  petition  pur- 
porting as  follows."  The  statute  then  proceeds  to  give 
Vol.  IL  38 


586  SUPREME  COURT  CASES, 


Jaeobson  v.  Manniiii 


the  form  of  the  petition,  in  which  it  requires  the  "  sub- 
stance "  of  the  bond  or  note  to  be  set  forth,  and  Gonchides 
by  praying  "judgment  for  his  debt,  and  damages  for  the 
detention  of  the  same,  together  with  his  costs."  Rev. 
Stat.,  476,  §  43. 

The  act  also  provides,  that  ''the  said  petition  shall 
stand  in  the  place  of  a  declaration,  that  the  defendant  or 
defendants  may  appear  and  plead,  and  then  an  issue  may 
be  joined  as  in  actions  of  debt  on  such  bond  or  note."  It 
further  provides,  that  the  statute  of  jeofails  shall  apply 
as  in  actions  of  debt  heretofore ;  and  that  this  act  shall 
not  prevent  persons  from  suing  in  the  ordinary  way. 
§§45,46. 

When  the  cause  was  called  for  trial,  the  defendant 
having  demrn'red  generally  to  the  plaintiff's  petition,  the 
demurrer  was  overruled ;  whereupon  the  defendant,  on 
leave  given,  pleaded  over.  The  parties  waived  a  jury,  and 
submitted  the  cause  to  the  court.  A  judgment  "^as  ren- 
dered for  the  j)laintiff  for  |774.33,  and  costs. 

A  writ  of  error  having  been  sued  out  to  this  court,  the 
cause  is  here  on  several  assignments  of  error,  only  one  of 
which  we  deem  it  necessary  to  consider,  viz. : 

The  court  erred  in  overruling  the  demurrer  of  the  de- 
fendant to  the  plaintiff's  petition. 

This  proceeding  under  the  statute  is  an  innovation  upon 
the  common  law  practice.  It  is  peculiar.  When  adopted 
by  a  plaintiff,  if  he  proceed  in  the  manner  and  form 
thereby  prescribed,  he  must  be  sustained  by  the  courts, 
however  subversive  of  the  common  law  the  procedure 
may  be.  It  is  undoubtedly  the  right  of  the  legislature 
to  provide  the  mode  of  judicial  procedure,  and  change  it 
partially  or  entirely,  as  in  their  wisdom  may  be  deemed 
best  for  the  public  good.  When  this  is  done,  it  is  the 
duty  of  courts  to  expound  faithfully,  and  give  effect  to 
the  law. 

Oyer  was  craved  of  the  note  in  the  court  below ;  and 
upon  the  demurrer  an  objection  to  the  action  was  raised, 
because  the  petition  is  in  debt,  and  the  note  filed  is  a 


DUBUQUE,  JULY,  1850.  587 


Shaw  V.  Sweeney. 


simple  contract  by  a  promissory  note  ;  that  tliercfore  the 
action  should  have  been  in  assumpsit. 

A  sufficient  answer  to  this  is,  that  the  act  of  the  legis- 
lature on  which  the  plainti£f  has  proceeded,  has  authorized 
the  bringing  of  the  suit  in  this  form  on  either  a  bond 
or  a  note.  It  prescribes  the  form  of  the  petition.  The 
phiiutifF  has  followed  it  substantially,  indeed  strictly. 
With  a  due  regard  for  the  law-making  power,  this  court 
cannot  require  more  of  a  prrty  who  has  elected  to  avail 
himself  of  this  mode  of  suing.  It  will  only  be  required  of 
a  plaintiff,  that  he  shall  observe  a  strict  compliance  with 
the  requisitions  of  the  statute,  as  it  is  an  innovation  upon 
the  well  established  practice  of  the  common  law. 

Judgment  affirmed. 

W,  E.  Leffingwell^  for  plaintiff  in  error, 

E,  Cook,  for  defendants. 


SHAW  V.  SWEENEY. 

Where  the  bill  of  exceplions  shows  that  the  court  below  erred  in  granting  a 
new  trial  upon  a  legal  proposition,  the  judgment  will  be  reversed. 

It  is  no  defence  to  an  action  of  slander,  that  the  slanderous  words  were 
spoken  by  the  fireside  of  the  defendant,  in  the  presence  of  but  two  or 
three  neighbors.  This  circumstance  will  not  remove  the  presumption  of 
malice. 

Exceptions  to  the  general  rule  of  presumptive  malice  explained. 

Error  to  Jackson  District  Court. 

Opinion  by  Kinney,  J.  Shaw  sued  Sweeney  in  case 
for  speaking  of  and  concerning  him  the  following  slander- 
ous words  :  "  Boys,  have  you  heard  about  old  Shaw's 
stealing  sheep  ?  he  has  stolen  one  of  Mary's  sheep."  The 
defendant  pleaded  "  not  guilty."     Under  the  instructions 


688  SUPREME  COURT  CASES, 


Shaw  V.  Sweeney. 


of  the  court,  the  jury  found  tlie  defendant  guilty,  and 
assessed  the  damages  of  the  plaintiff  at  |168.  The  de- 
fendant moved  for  and  obtained  a  new  trial.  The  decision 
of  the  court  ordering  a  new  trial  is  assigned  for  error. 
The  following  is  the  bill  of  exceptions  taken  by  the  plain- 
tiff in  error  to  this  decision  of  the  court : 

"Be  it  remembered  that  the  defendant  moved  the  court 
for  a  new  trial,  and  that  the  court  ordered  a  new  trial  on 
the  ground  that  the  verdict  was  contrary  to  law  in  this, 
that  the  conversation  took  place  at  ih.Q  house  and  fireside 
of  the  defendant,  in  a  conversation  before  and  in  the 
presence  of  but  two  or  three  of  his  neighbors."  The 
court  also  decide,  as  appears  from  the  bill  of  exceptions, 
"  that  the  words  as  proved  would  have  been  actionable 
if  spoken  except  at  the  defendant's  fireside,  but  being 
spoken  there,  the  action  could  not  be  maintained." 

In  ordinary  cases,  when  the  court,  in  the  exercise  of  a 
sound  discretion,  grants  or  refuses  a  new  trial,  as  has  been 
repeatedly  decided  by  this  court,  we  are  not  disposed  to 
interfere  with  that  discretion.  But  when  the  decision  is 
set  out  in  a  bill  of  exceptions  based  upon  a  legal  proposi- 
tion, if  the  court  err  in  allowing  or  refusing  a  new  trial, 
the  decision  will  be  reversed.  In  the  case  before  us,  the 
court  granted  a  new  trial  upon  the  ground  that  the  action 
could  not  be  maintained,  as  the  defendant  spoke  the  words 
around  his  own  fireside,  in  the  presence  of  but  two  or  three 
of  his  neighbors. 

Was  this  a  protection  to  the  defendant  ?  a  good  and 
valid  defence  ?  and  did  the  time,  place  and  circumstances 
render  the  communication  privileged  and  harmless?  If 
not,  the  words  being  actionable  per  se,  the  plaintiff,  upon 
proof  of  the  speaking  of  the  words,  was  entitled  to  a 
verdict,  as  the  law,  when  words  are  in  themselves  action- 
able, presumes  a  malicious  intent,  and  therefore  express 
malice  need  not  be  proved.  2  Greenl.  on  Bv.,  §  418; 
Starkie  on  Sland.,  p.  47. 

The  court  granted  a  new  trial  because  the  defendant  was 
privileged  to  speak  the  words  in  his  own  domicile,  and 


DUBUQUE,  JULY,  1850.  589 

Sluiw  V.  Sweeney. 

althoiigli  the  words  were  actionable,  yet  the  place  and  cir- 
cumstanoes  of  speaking  them  would  rebut  the  legal  pre- 
sumption of  malice.  In  the  case  of  W/nte  v.  Nicholh  et 
al.,  3  Howard,  285,  the  court  lay  down  the  following  ex- 
ceptions to  the  general  rule  of  presumptive  malice : 

1.  Whenever  the  author  and  publisher  of  the  alleged 
slander  acted  in  the  bona  fide  discharge  of  a  public  or  pri- 
vate duty,  legal  or  moral,  or  in  the  prosecution  of  his 
own  rights  or  interests.  For  example,  words  spoken  in 
confidence  and  friendship  as  a  caution,  or  a  letter  written 
confidentially  to  persons  who.  employed  A  as  a  solicitor^ 
conveying  charges  injurious  to  his  professional  charactei 
in  the  management  of  certain  causes  which  they  had 
intrusted  to  him,  and  in  which  the  writer  of  the  letter 
was  also  interested. 

2.  Anything  written  by  a  master  in  giving  the  character 
of  a  servant  who  has  been  in  his  employ. 

3.  Words  used  in  the  course  of  a  legal  or  judicial  pro- 
ceeding, however  hard  they  may  bear  upon  the  party  of 
whom  they  are  used. 

4.  Publications  duly  made  in  the  ordinary  mode  of  par- 
liamentary proceedings,  as  a  petition  printed  and  delivered 
to  the  members  of  a  committee  appointed  by  the  House 
of  Commons  to  hear  and  examine  grievances. 

"  But  the  term  '  exceptions,'  as  applied  to  cases  like 
those  just  enumerated,  could  never  be  interpreted  to  mean 
that  there  is  a  class  of  actors  or  transactions  placed  above 
the  cognizance  of  the  law,  absolved  from  the  commands 
of  justice.  The  privilege  spoken  of  in  the  books  should, 
in  our  opinion,  be  taken  with  strong  and  well  defined 
qualifications.  That  the  excepted  instances  shall  so  far 
change  the  ordinar}''  rule  with  respect  to  slanderous  or 
libellous  matter,  as  to  remove  the  regular  and  usual  pre- 
sumption of  malice,  and  to  make  it  incumbent  on  the 
party  complaining  to  show  malice,  either  by  the  construc- 
tion of  the  spoken  or  written  matter,  or  by  facts  and  cir- 
cumstances connected  with  that  matter,  or  with  the  situa- 
tion of  the  parties,  adequate  to  authorize  the  conclusion." 


590  SUPREME  COURT  CASES, 

Shaw  V.  Sweeney. 

In  tlie  case  of  Cockagne  v.  Hodgkisson,  5  Car.  &  Pa., 
543,  Baron  Parke  says,  "  that  every  wilful  and  unauthor- 
ized publication  injurious  to  the  character  of  another  is  a 
libel ;  but  where  the  writer  is  acting  in  any  duty,  legal  or 
moral,  towards  the  person  to  whom  he  writes,  or  is  bound 
by  his  situation  to  protect  the  interest  of  such  person,  that 
Avhich  he  writes  under  such  circumstances  is  a  privileged 
communication,  unless  the  writer  is  actuated  by  malice." 
Apply  these  general  principles  and  definitions  to  the 
case  at  bar,  and  we  cannot  come  to  the  conclusion  that 
the  words  spoken  fall  within  the  exceptions,  or  were  in 
any  sense  privileged,  in  consequence  of  the  defendant 
speaking  them  in  his  own  domicile.  The  circumstances 
under  which  the  slanderous  words  were  used  will  not  re- 
but the  presumption  of  malice,  so  as  to  throw  the  onus 
upon  the  plaintiff;  ii  not,  the  plaintiff  could  maintain  his 
action,  and  was  entitled  to  a  verdict  upon  proof  of  speak- 
ing the  words,  unless  the  defendant  could  by  testimony 
remove  the  legal  presumption  of  malice. 

A  man's  fireside  ought  not  to  be  made  the  place  for  the 
promulgation  of  slander,  but  if  a  person  does  resort  to 
the  domestic  circle  and  in  the  presence  of  citizens  de- 
fames and  traduces  the  character  of  his  neighbor,  he 
should  be  held  responsible  to  the  injured  party.  He  will 
not  be  permitted  to  plead,  in  bar  of  the  action,  that  his 
house  was  his  castle,  for  the  purposes  of  falsehood  and 
slander.  If  the  doctrine  contended  for  at  bar  by  the  de- 
fendant in  error  were  to  obtain,  a  person  could  slander 
and  destroy  the  fairest  reputation  with  perfect  impunity. 
Reports  of  the  vilest  nature  against  reputation  before  un- 
sullied, emanating  from  a  malicious  heart  with  corrupt 
motives,  could  be  put  in  circulation  in  a  man's  own  house 
in  the  presence  of  others,  and  the  person  whose  character 
was  thus  traduced  and  destroyed  could  have  no  remedy, 
because  the  words  were  spoken,  as  in  this  case,  around  the 
defendant's  fireside.  We  should  regret  to  see  a  doctrine 
which  would  open  so  wide  a  door  for  the  gratification  of 
the  malicious  propensities  of  the  human  heart,  and  so  sub- 


DUBUQUE,  JULY,  1850.  591 


Rickaer  v.  Dixon. 


versive  of  the  social  good  of  the  community,  seriously  tol- 
erated b}"  the  courts.  The  judgment  therefore  in  this  case, 
allowing  to  the  defendant  a  new  trial,  is  reversed  and  set 
aside,  and  the  court  helow  required  to  enter  judgment  for 
the  plaintiff  below  upon  the  verdict. 

Judgment  reversed. 
Wilson  ^  Smith,  for  plaintiff  in  error. 
Lovell  f  Samuels  and  P.  B.  Bradley,  for  defendant. 


EICKNER  et  al.  v.  DIXOK 

In  an  action  of  replevin  commenced  before  a  justice  of  the  peace,  where  the 
plaintiff  fails  to  prosecute  his  suit  with  effect,  or  adduce  any  proof  in 
support  of  his  action,  the  law  presumes  title  to  be  in  the  defendani,  and  it 
is  ouly  necessary  for  him  to  prove  the  value  of  the  property,  in  order  to 
recover  restitution  or  payment  of  its  value. 

Error  to  Delaware  District  Court. 

Opinion  bi/  Greene,  J.  This  was  an  action  of  replevin 
commenced  before  a  justice  of  the  peace  by  Daniel  Rickner, 
to  recover  a  horse.  On  giving  the  security  required,  the 
plaintiff  obtained  possession  of  the  property,  but  failed  to 
appear  at  the  trial,  and  thereupon  judgment  was  rendered 
against  him  and  his  sureties  for  the  value  of  tlie  horse, 
and  for  damages.  The  sureties  then  took  the  case  by  ap- 
peal to  the  district  court. 

In  the  district  com't  the  case  was  submitted  to  a  jury, 
verdict  retm-ned  for  the  defendant,  and  the  value  of  pro- 
perty assessed  at  $200.  Judgment  was  rendered  accord- 
ingly against  the  appellants,  that  the  property  be  returned 
or  the  assessed  value  thereof  paid  to  the  defendant. 

It  appears  by  the  bill  of  exceptions,  that  on  the  trial  the 
plaintiff  declined  to  adduce  any  proof  in  support  of  the 


592  SUPREME  COURT  CASES, 


Piickner  v.  Dixon, 


action,  and  thereupon  tlie  defendant  proceeded  to  prove 
the  value  of  the  horse  taken  from  him  by  virtue  of  the  re- 
plevin, without  giving  evidence  of  title  in  the  horse.  It 
was  claimed  that  such  evidence  was  necessary,  but  the 
court  ruled  that  the  only  question  before  the  jury  was  the 
value  of  the  replevied  property ;  and  though  requested,  the 
court  refused  to  instruct  the  jury  that  the  defendant  was 
not  entitled  to  a  verdict  for  the  value  of  the  property.  In 
these  particulars  it  is  contended  that  the  proceedings  be- 
low are  erroneous. 

To  support  the  allegations  of  error  the  case  of  Harman 
V.  Goodrich^  1  G.  Greene,  13,  is  referred  to;  but  as  that 
was  an  action  of  replevin  under  a  very  different  statute, 
we  do  not  consider  it  applicable.     In  that  case  the  plain- 
tiff was  non-suited,  and  a  jmy  impanneled  pursuant  to  the 
statute  "  to  inquire  into  the  right  of  property  and  right  of 
possession  of  the  defendant  to  the  goods  and  chattels  in 
controversy."     Rev.  Stat.,  p.  537,  §  17.     Under  this  sta- 
tute it  was  held  that  even  after  a  non-suit  the  plaintiff 
might  prove  ownership  of  the  property  in  himself  in  order 
to  show  that  the  defendant  had  no  right  of  property  or  of 
possession  under  the  issue.     But  the  statute  under  which 
this  suit  was  commenced  has  no  such  provision  and  con- 
templates no  such  issue.     It  provides,  that  "  if  a  plaintiff 
in  replevin  failed  to  prosecute  his  suit  with  effect  and 
without  delay,  the  justice  or  jury  shall  assess  the  value  of 
the  property  taken  and  damages  for  the  use  of  the  same," 
&c.  ;    "in  such  case  the  judgment  shall  be  against  the 
plaintiff  and  his  sureties,  that  he  return  the  property  taken 
or  pay  the  value  so  assessed,  and  also  pay  double  the  dam- 
ages assessed  for  the  detention  of  property."     Rev.  Stat., 
p.  338,  §§  8  and  9.     It  apj^ears  that  the  plaintiff  in  the 
present  case  did  fail  to  prosecute  his  suit.     In  such  event 
the  law  presumes  the  title  to  be  in  the  defendant  who  had 
possession  before  the  suit.    There  having  been  no  proof  of 
title  in  anj''  other  person,  it  follows  that  the  defendant  was 
entitled  to  restitution,  or  to  payment  of  its  value.     That 
value  being  the  only  point  at  issue  or  undecided,  evidence 


DUBUQUE,  JULY,  1850.  593 

Hutton  V.  Drebilbis. 

upon  any  other  point  was  clearly  irrelevant  and  inadmis- 
sible. The  court  below,  then,  did  not  err  in  ruling  that 
evidence  of  ownership  in  the  defendant  was  not  necessary 
to  entitle  him  to  recover,  nor  in  refusing  to  instruct  the 
jury  that  the  defendant  could  not  recover  the  value  of  the 
property. 

Judgment  affirmed. 

L,  Clark^  for  plaintiff  in  error. 

T.  S,  Wilson^  T.  Davis  and  F.  E.  Bissell,  for  defendant. 


HUTTON  V.  DREBILBIS. 

The  district  court  has  concurrent  jurisdiction  with  justices  of  the  peace  in 
actions  of  replevin,  when  the  property  claimed  is  worth  less  than  $50  ;  so 
in  all  other  actions. 

Error  to  Jones  District  Court. 

Opinion  ly  Kinney,  J.  Hutton  sued  Drebilbis  in 
replevin  in  the  district  court  of  Jones  county,  to  recover 
a  certain  bay  mare,  valued  in  the  writ*  and  declaration  at 
$50,  but  appraised  at  only  $40.  The  defendant  filed 
a  plea  to  the  jurisdiction  of  the  court,  alleging  the  pro- 
perty to  be  only  worth  $40,  which  he  was  ready  to  verify. 
Wherefore  he  prayed  judgment,  as  the  court  could  not 
take  cognizance  of  the  action.  To  this  plea  the  plaintiff 
demm-red,  in  which  the  defendant  joined.  The  demurrer 
was  sustained,  and  the  plea  adjudged  good  ;  and  the 
plaintiff  failing  to  plead  further,  a  judgment  was  ren- 
dered against  him  for  costs,  to  reverse  which  he  sued  out 
a  writ  of  error,  and  assigns  for  error  the  decision  of  the 
court,  that  it  had  no  jurisdiction  in  an  action  of  replevin, 
where  the  property  claimed  was  not  worth   more   than 


594  SUPREME  COURT  CASES, 

Hutton  V.  Drebilbis. 

It  was  contended  in  the  argument  by  the  plaintiff  in 
error,  that  the  district  courts  under  the  constitution  have 
concurrent  jurisdiction  with  justices  of  the  peace  in  all 
sums  ;  but  the  defendant  claims  that  the  jurisdiction  of  a 
justice  is  exclusive  where  the  amount  claimed  is  under  $50. 

By  the  Rev.  Stat,  p.  313,  §§  28  and  29,  it  is  provided, 
that  justices  of  the  peace  are  authorized  and  empowered 
to  hold  courts  for  the  trial  of  all  actions  in  debt,  covenant, 
assumpsit,  and  other  actions  founded  on  contract,  where 
the  debt  or  balance  due,  or  damages  claimed,  shall  not 
exceed  $50.  The  replevin  act  gives  justices  of  the  peace 
the  right  to  try  actions  of  replevin  where  the  value  of  the 
property  claimed  shall  not  exceed  the  value  of  $50.  Rev. 
Stat.,  p.  337,  §  1. 

The  constitution  provides,  that  the  district  court  shall  be 
a  court  of  law  and  equity,  and  have  jurisdiction  in  all  civil 
and  criminal  matters  in  their  respective  districts  in  such 
manner  as  shall  be  prescribed  by  law.     Ai't.  6,  §  4. 

This  clause  in  the  constitution  confers  u23on  the  district 
court  jurisdiction  in  all  civil  and  criminal  matters  in  their 
respective  districts  ;  the  manner  of  exercising  that  juris- 
diction or  power  is  to  be  prescribed  b}''  law.  We  do  not 
understand  by  this  article  that  the  legislature  have  the 
right  to  limit  or  restrict  the  jurisdiction  thus  conferred 
upon  the  district  courts  by  the  constitution,  but  merely 
to  define  and  regulate  the  manner  in  which  that  jurisdic- 
tion shall  be  employed.  The  jurisdiction  is  unlimited  as 
to  amount,  and  extends  to  all  civil  and  criminal  matters. 
There  is  no  amount  so  large  as  to  be  beyond  the  jurisdic- 
tional power  of  the  district  courts,  nor  none  so  small  as 
to  fall  beneath  it.  Justices  of  the  peace,  then,  have  not, 
and  cannot  have,  exclusive  jurisdiction  to  the  extent  limited 
b}'  the  constitution.  So  far  as  their  jurisdiction  extends, 
it  is  concurrent  with  that  of  the  district  courts.  If  their 
jurisdiction  is  exclusive  in  all  sums  up  to  $50,  we  do  not 
know  why  it  should  not  be  up  to  $100,  as  the  constitution 
confers  upon  justices  of  the  peace  jurisdiction  to  that 
amount. 


DUBUQUE,  JULY,  1850.  595 

Galloway  v.  Trout. 

But  from  the  constitution  it  is  evident  that  the  jurisdic- 
tion, to  the  extent  limited  to  justices  of  the  peace,  may  be 
exercised  concurrently  by  both  courts,  and  not  exclusively 
by  either. 

The  fundamental  law  of  the  state  has  fixed  the  jurisdic- 
tion of  the  district  courts,  and  it  is  not  within  the  power 
of  the  legislature  to  change  or  modify  it.  Much  less  can 
that  jurisdiction  be  restricted  by  a  statute  in  force  anterior 
to  the  adoption  of  the  constitution,  and  when,  by  express 
provision  in  the  constitution,  only  those  laws  which  were 
not  repugnant  to  it  were  continued  in  force.  The  judg- 
ment of  the  district  court  is  therefore  reversed,  and  the 
cause  remanded  for  further  proceedings  not  inconsistent 
with  this  opinion. 

Judgment  reversed. 

P.  j'  J,  M.  Smith,  for  plaintiff  in  error. 

Davis  ^  Bissellj  for  defendant. 


GALLOWAY  et  al.  v.  TKOUT. 

In  an  action  on  a  promissory  note,  where  a  copy  of  it  is  filed  with  the  decla- 
ration, no  other  bill  of  particulars  is  required. 

No  suit  should  be  brought  against  an  estate  upon  a  claim  for  less  than  $25, 
until  the  claim  has  been  presented,  as  required  by  statute,  to  the  repre- 
sentative of  the  estate,  and  payment  refused. 

Ajudgment  in  debt  was  rendered  in  an  action  of  assumpsit,  and  as  all  other 
proceedings  in  the  case  are  regular,  it  was  held  that  the  judgment  should 
not  be  reversed,  but  should  be  corrected  conformable  to  the  action. 

Error  to  Jackson  District  Court. 

Opinion  by  Greene,  J.  An  action  of  assumpsit  com- 
menced by  Margaret  Trout  against  John  Galloway,  admin- 
istrator of  the  estate  of  David  Young,  deceased.  The  suit 
was  commenced  on  a  promissory  note  executed  by  Young 


596  SUPREME  COURT  CASES. 

Galloway  v.  Trout. 

(luring  his  life  to  said  Margaret,  for  the  sum  of  $70. 
Judgment  against  the  administrator  for  the  amount  of 
the  note. 

1.  On  the  trial  below  it  was  objected  that  the  note  should 
not  be  admitted  in  evidence  under  the  general  counts  in 
the  declaration,  because  no  bill  of  particulars,  except  a  copy 
of  the  note,  had  been  filed  with  the  declaration.  In  over- 
ruling this  objection,  the  court  decided  that  a  copy  of  the 
note  was  a  sufficient  bill  of  particulars.  This  decision  of 
the  court,  under  our  statute,  is  correct.  It  only  requires 
the  plaintiff  to  file  his  declaration,  together  with  a  copy  of 
the  instrument  of  writing  or  account  on  which  the  action 
is  brought.     Rev.  Stat.,  p.  469,  §  6. 

2.  The  defendant  below  also  objected  that  he  was  not 
liable  to  an  action  on  the  note  until  it  had  been  presented 
to  the  judge  of  probate  for  allowance,  but  the  court  ruled 
otherwise. 

This  objection  was  founded  upon  the  statute  of  1845,  § 
3,  which  provides,  that  before  any  executor  or  administra- 
tor shall  allow  or  pay  any  debt  demanded  as  due  from 
the  deceased,  the  person  claiming  such  debt  shall  make 
affidavit  that  nothing  has  been  paid  in  satisfaction  of 
the  same,  except  what  has  been  credited,  and  that  the 
sum  demanded  is  justly  due.  Section  8  of  the  same 
act  provides,  that  no  demand  of  a  less  sum  than  $25  shall 
be  presented  to  the  court  of  probate  for  allowance  until 
after  the  executor  or  administrator  shall  have  refused  to 
allow  and  class  the  same.  It  is  contended  that  under 
section  3  a  party  cannot  bring  suit  against  the  adminis- 
trator of  an  estate  until  the  affidavit  is  made,  and  the 
claim  presented  to  the  administrator  and  judge  of  probate 
for  allowance,  as  provided  by  that  section.  But  we  can 
arrive  at  no  such  conclusion  from  our  construction  of  the 
statute.  The  affidavit  is  required  chiefly  to  regulate  and 
limit  the  power  of  executors  and  administrators  in  allow- 
ing or  paying  claims  against  estates,  and  not  as  a  pre- 
liminary act  to  be  done  before  suits  can  be  instituted  upon 
such  claims. 


DUBUQUE,  JULY,  1850.  597 

Galloway  v.  Trout. 

But  according  to  section  8,  demands  for  less  than  |25 
should  not  be  allowed  by  the  probate  court  until  they  have 
been  presented  to  the  executor  or  administrator,  and  the 
allowance  refused.  By  this  section  we  think  the  legisla- 
ture intended  that  no  suit  should  be  brouo^ht  a2:ainst  an 
estate  in  any  court  upon  a  claim  for  less  than  $25,  until 
after  the  claim,  supported  by  the  requisite  affidavit,  had 
been  presented  as  required,  and  the  allowance  refused  by 
the  legal  representative  of  the  estate.  But  this  regulation 
does  not  extend  to  claims  for  more  than  §25,  and  conse- 
quently can  have  no  application  to  the  present  case,  as 
this  suit  was  brought  on  a  note  calling  for  §70.  In  this 
particular  also  we  think  the  court  below  proceeded  cor- 
rectly. 

3.  Another  objection  urged  is,  that  the  action  is  in 
assumpsit  and  the  judgment  in  debt.  The  question  arises, 
Will  this  defect  in  the  form  of  the  judgment  justify  this 
court  in  reversing  proceedings  which,  in  all  other  parti- 
culars, appear  to  have  been  properly  conducted?  It  is 
expressly  provided  by  statute,  that  no  judgment  shall  be 
impaired  or  affected  for  any  defect  of  form  contained  in 
the  record,  entries  or  other  proceeding  which  might  have 
been  amended  by  the  court  in  which  such  judgment  was 
rendered,  and  that  such  defects  and  imperfections  shall  be 
supplied  and  amended  by  the  supreme  com-t.  Laws  of 
1844,  p.  9,  §  30.  And  by  the  next  section,  this  court  is 
authorized  to  give  such  judgment  as  the  district  court 
ought  to  have  given.  The  defect  in  question  is  one  which 
may,  we  think,  be  corrected  with  great  propriety  by  order 
of  this  court.  The  judgment  of  the  court  below  will  there- 
fore be  amended  conformable  to  the  action  of  assumpsit, 
and  affirmed  at  the  cost  of  the  defendant  in  error. 

Judgment  affirmed, 

Wilson  ^  Smith,  for  plaintiffs  in  error. 

hradley  ^  Bangs,  for  defendant. 


598  SUPREME  COURT  CASES, 


Westbrook  v.  Westbrook. 


WESTBROOK  v.  WESTBKOOK. 

By  the  statute  of  1844,  all  laws  were  repealed  which  authorized  the  issuing 

of  a  capias  and  holding  to  bail  in  civil  suits. 
A  petition  for  alimony  is  in  the  nature  of  a  civil  proceeding  in  which  a 

capias  and  holding  to  bail  are  not  authorized. 
Where  a  capias  is  improperly  sued  out,  it  cannot  be  held  good  as  a  summons. 

Error  to  Jackson  District  Court. 

Opinion  by  Kinney,  J.  The  defendant  in  error  filed 
lier  petition  in  the  court  below  for  alimony.  A  capias 
Avas  issued,  upon  which  the  plaintiff  in  error  was  arrested, 
and  gave  bail  for  his  appearance  to  the  next  term  of  the 
court.  Upon  the  appearance  of  the  defendant  below,  he 
moved  to  quash  the  writ.  ''  The  court  decided  the  motion 
to  be  correct  so  far  as  the  arresting  of  the  defendant  was 
concerned,  but  held  that  the  same  was  a  good  writ  or  notice 
for  the  purpose  of  the  suit  in  all  respects  except  as  a  capias 
to  arrest  the  person,  and  ruled  that  the  defendant  answer 
the  petition  in  thirt)'^  days."  To  this  ruling  of  the  court  the 
defendant  excepted,  and  assigns  the  decision  for  error. 

The  petition  was  filed  and  capias  issued  under  section 
10  of  Rev.  Stat.,  p.  240,  which  provides,  that  when  the 
liusband  is  about  to  abandon  or  has  abandoned  his  wife, 
\\\\k\  the  intention  of  leaving  the  territory,  and  neglect  or 
refuse  to  provide  for  her  support,  or  the  support  of  his 
children,  upon  a  statement  filed,  &c.,  the  cleik  shall  there- 
upon issue  a  capias  to  hold  the  i^aid  husband  to  bail.  This 
statute  was  approved  20th  January,  1843. 

By  an  act  approved  14th  February,  1844,  it  is  provided, 
that  no  person  shall,  after  the  passage  of  the  act,  be  ar- 
rested, held  to  bail  or  imprisoned,  on  any  original  mesne 
or  final  process  or  execution,  issued  in  any  civil  suit  insti- 
tuted in  any  court  in  this  territory.  A  general  repealing 
clause  is  attached  to  the  act,  by  which  all  acts  and  parts 
of  acts  contravening  the  provisions  of  the  act  are  repealed. 
Laws  of  1844,  p.  20. 

This  statute  not,  only  clearly  repealed  so  much  of  the 


DQBUQUE,  JULY,  1850.  699 

Westbrook  v.  Westbrook. 

statute  of  1843  as  authorized  tlie  issuing  of  a  capias  and 
holding  to  bail,  but  in  plain  and  direct  terms  prohibits  an 
arrest  and  bail  in  all  civil  suits.  This, was  a  civil  proceed- 
ing. The  husband  in  law  was  bound  to  support  his  wife, 
to  maintain  with  fidelity  the  marriage  contract,  and  if  he 
refused  to  afford  her  that  maintenance  to  which  she  was 
entitled,  the  criminal  code  was  in  no  manner  violated,  but 
he  was  liable  in  a  civil  suit  for  her  support.  The  liability 
of  the  husband,  by  virtue  of  the  marital  relation,  was  of  a 
high  and  sacred  nature,  but  still  no  less  a  civil  liability ; 
and  hence,  as  the  statute  prohibits  the  issuing  oi  capias  and 
holding  to  bail  in  civil  suits,  the  writ  in  this  case  was  im- 
properly sued  out,  and  the  defendant  illegally  held  to  bail. 
But  the  com't  quashed  the  capias  as  a  capias,  and  held  it' 
good  as  a  summons  or  notice  to  the  defendant.  This  is 
error.  The  writ  being  absolutely  forbidden  by  law,  the 
defendant  was  no  more  in  court  than  if  it  had  never  been 
issued  and  served.  The  court  acquired  no  jurisdiction  of 
his  person,  and  should  not  have  ordered  him  to  j)lead. 
The  writ  was  void  ab  initio,  and  could  not  have  been  held 
invalid  so  far  as  the  arrest  was  concerned,  and  valid  for 
the  purpose  of  notice  and  bringing  the  defendant  into 
court.  A  practice  so  dangerous  would  lead  to  the  worst 
of  consequences.  If  it  could  be  tolerated  in  a  case  like 
the  one  before  us,  the  same  practice  might  obtain  in  all 
ordinary  civil  actions,  and  defendants  could  be  brought 
into  court  upon  capias,  and  although  the  arrest  might  be 
adjudged  illegal,  still  the  notice  would  be  equivalent  to 
notice  by  summons.  A  service  by  capias  cannot  in  this 
manner  be  substituted  for  service  by  summons.  Aside  from 
the  inconvenience  which  would  result  to  party  defendants, 
and  the  confusion  in  practice  by  such  substitution,  the  law 
will  not  permit  the  analogy.  Each  writ  must  stand  or  fall 
of  itself,  and  the  virtues  of  the  one  cannot  be  brought  in 
to  sustain  the  deformities  of  the  other. 

Judgment  reversed. 

Wilson  ^  Smith,  for  plaintiff  in  error. 

L.  Clark  and  W,  E.  Leffingwell,  for  defendant. 


600  SUPREME  COURT  CASES, 


Knott  V.  Burleson. 


KNOTT  V.  BURLESON  et  at. 

Where  profert  is  made  of  a  release  which  had  been  pleaded,  it  becomes  a 

part  of  the  plea. 
The  construction  of  a  release  is  a  question  of  law  to  be  determined  by  the 

court. 
Where  legal  terms  are  employed  in  a  release,  it  must  be  presumed  that  the 

parties  fully  understood  the  legal  import  of  the  words,  and  the  court  will 

give  effect  to  that  understanding. 

Error  to  Clinton  District  Court. 

Opinion  hy  Greene,  J.  Trespass  vi  et  armis  by  the 
plaintiff  against  the  defendants  in  error.  The  declaration 
contains  two  counts  :  the  one  for  an  asportation  of  horses 
and  harness,  and  the  other  for  an  assault  and  battery.  The 
defendants  pleaded  the  general  issue,  and  gave  notice  that 
they  would  give  in  evidence  a  release  of  the  cause  of 
action  to  one  of  the  joint  trespassers.  Oyer  of  the  release 
was  craved,  and  it  appears  of  record  in  the  following 
language : 

"  For  value  received,  I  hereby  release  L.  T.  Hubbard 
from  all  liability  to  me  for  damages  in  consequence  of  the 
said  L.  T.  Hubbard  being  a  principal  or  accessory  in  a 
certain  riot,  and  false  imprisonment,  for  which  prosecu- 
tions are  now  pending  against  Shadrock  Burleson  and 
others  in  the  district  court  of  Clinton  county.  Witness 
my  hand  and  seal,  May  18th,  1848. 

John  M.  Knott.     [Seal.]" 

Thereupon  the  plaintiff  demurred  to  the  plea  and  re- 
lease, but  the  demurrer  was  overruled. 

The  only  question  now  to  be  determined  is,  Did  the  court 
below  err  in  deciding  the  plea  of  release  good  ?  The  re- 
lease comes  before  us  as  the  only  evidence  in  support  of 
the  plea.  By  making  profert  of  the  release,  it  became  a 
part  of  the  plea,  and  the  only  ground  upon  which  it  could 
be  maintained.  In  order,  then,  to  determine  the  sufficiency 
of  the  plea,  it  is  only  necessary  to  examine  the  found- 


DUBUQUE,  JULY,  1850.  601 

Knott  V.  Burleson. 

ation  upon  which  it  assumes  to  rest,  and  from  which  it 
derives  its  character.  In  deciding  this  case,  therefore,  we 
are  brought  at  once  to  the  legal  construction  of  the  release, 
and  this  is  clearly  a  question  of  law,  which  the  court  may- 
determine  without  the  intervention  of  a  jmy. 

The  parties  to  the  release  in  this  case  employed  legal 
terms  in  reference  to  proceedings  at  law,  and  it  must  be 
presumed  that  they  fully  understood  the  legal  import  of 
the  words  used,  and  such  should  consequently  be  the  con- 
Btruction  placed  upon  them  by  the  court.  The  language 
used  is  unequivocal,  it  admits  of  but  one  interpretation. 
It  extends  only  to  "  a  certain  riot  and  false  imprisonment" 
then  pending  against  Burleson  and  others  in  the  district 
court.  It  would  pervert  not  only  the  technical,  but  the 
ordinary  and  plain  signification  of  the  release,  to  apply  it 
to  any  other  action  than  that  of  riot  or  false  imprisonment. 
There  is  no  latitude  even  implied  in  the  instrument  which 
can  justify  its  extension  to  any  other  cause.  It  has  no  refer- 
ence to  the  action  of  trespass  set  forth  by  the  declaration 
in  the  present  case.  Had  the  release  been  intended  for  the 
proceedings  at  bar,  the  reference  could  have  been  readily 
made  by  taking  from  the  declaration  or  writ  at  least 
the  name  of  the  suit.  There  being  no  such  reference,  no 
connection  or  agreement  between  the  release  and  the  de- 
claration, we  must  conclude  that  the  parties  intended  it 
as  a  discharge  from  some  other  suit,  more  clearly  adapted 
to  the  expressed  object  of  the  release. 

We  conclude,  then,  that  the  court  below  erred  in  over- 
ruling the  demurrer. 

Judgment  reversed. 

L,  Clark,  for  plaintiff  in  error, 

.  Piatt  Smith,  for  defendant. 

Vol.  II.  80 


602  SUPREME  COURT  CASES, 


Darling  v.  Meachum. 


DAELING  V.  MEACHUM. 

Where  a  plea  is  defective  only  in  form,  a  general  demurrer  to  it  should  be 

overruled. 
The  words  beyond  sea,  in  the  Michigan  statute  of  limitations,  means  beyond 

the  limits  of  the  United  States. 

Error  to  Dubuque  Districi?  Court. 

Opinioft  by  Greene,  J.  Assumpsit  on  a  promissory 
note  made  by  Alonzo  Meachum  to  the  j)laintiff,  April  25, 
1832.  To  the  decla»ation  nine  pleas  were  filed.  The 
fifth,  sixth,  seventh  and  eighth  pleas  set  up  the  statute 
of  limitations  in  force  upon  the  note,  previous  to  the  act 
which  took  efi'ect  July  4,  18'43.  To  these  pleas  a  general 
demurrer  was  filed  and  overruled.  As  the  pleas  were 
good  in  substance,  and  defective  only  in  form,  the  general 
demurrer  was  correctly  overruled.     Rev.  Stat.,  55,  §  10. 

The  ninth  plea  set  up  the  statute  of  Michigan,  approved 
May  15,  1820,  and  averred  that  the  note  was  given  under 
that  statute  in  1832,  which  limited  the  cause  of  action  to 
six  years  from  and  after  the  time  it  accrued  ;  and  that  de- 
fendant continued  and  resided  subject  to  that  law,  under 
the  territorial  changes  from  Michigan  to  Wisconsin  and 
Iowa,  until  July  30, 1840,  when  said  statute  was  repealed; 
and  that  before  said  repeal  the  plaintiff's  cause  of  action 
was  barred.  » 

To  this  plea  the  plaintifi"  filed  a  rejDlication,  averring  that 
he  was  beyond  the  sea,  to  wit,  in  the  state  of  Illinois,  when 
the  cause  of  action  accrued ;  that  he  so  continued  beyond 
the  seas  until  the  repeal  of  the  said  act  of  limitations  ;  and 
that  he  did  not  at  any  time  after  the  accruing  of  said  cause 
of  action  come  or  return  within  the  limits  of  Michigan, 
Wisconsin  or  Iowa,  until  within  six  years  before  the  com- 
mencement of  this  suit. 

To  this  replication  the  defendant  demurred,  and  the 
demurrer  was  sustained.  But  it  is  insisted  that  the  de- 
murrer should  have  been  overruled ;  and  that  the  words 


DUBUQUE,  JULY,  1850.  603 

Durling  v.  Meachum. 

*'  beyond  the  seas  "  in  the  Michigan  state  are  equivalent  to 
the  words  out  of  the  state,  or  out  of  the  territory.  In  some 
of  the  states  the  term  "beyond  sea,"  as  borrowed  from  the 
limitation  act  of  21  James  L,  has  been  construed  to  mean 
without  the  limits  of  the  state.  But  other  states  have 
given  the  phrase  a  literal  construction,  or  at  least  have 
extended  the  exemption  to  such  persons  only  as  were  be- 
yond the  bounds  of  the  United  States.  This  construction 
is  more  in  accordance  with  the  signification  of  the  words, 
and  is  sanctioned  by  the  ruling  of  the  English  courts, 
which  held  that  the  term  has  a  meaning  synonymous  with 
that  of  beyond  or  out  of  the  realm;  and  hence  it  was  held 
that  Scotland  is  not  beyond  sea  from  England. 

So  in  this  country  the  several  states  should  be  regarded 
as  within  the  same  realm.  They  are  under  the  same  general 
government,  the  same  general  system  of  jiu-isprudence, 
and  under  the  same  federal  courts  which  will  entertain  the 
suit  of  the  absentee  against  the  resident  debtor.  The 
several  states  are  also  united  under  the  same  post-office 
system  and  by  the  same  telegraphic  wires,  thus  aflPording 
every  facility  for  discovering  the  residence  of  debtors. 
"Why,  then,  should  a  forced  and  foreign  construction  be 
given  to  the  act  in  order  to  furnish  a  saving  clause  in 
favor  of  non-resident  creditors  ?  It  cannot,  we  think,  be 
safely  argued  that  such  was  the  intention  of  the  legislature. 
No  such  intention  can  be  legitimately  drawn  from  the 
language  of  the  act.  If  it  had  been  entertained,  it  could 
have  been  readily  expressed.  Laws  of  3Iichigan,  1820,  p. 
572,  §  10.  This  section  of  the  statute  we  think  clearly 
explains  itself  by  the  words,  or  "without  the  United  States." 

In  Penns^'lvania  a  similar  statute  has  been  construed 
to  mean  beyond  the  United  States.  Thurston  v.  Fisher^ 
9  Serg.  &  R,  288.  So  in  Connecticut,  the  term  "  over 
sea  "  received  a  literal  construction.  In  Gustin  v.  Brattle, 
Kirby,  299,  it  was  held  that  absence  at  Halifax,  though 
without  the  jurisdiction  of  the  United  States,  is  not 
beyond  sea. 

In  Ohio  the  courts  construed  the  phrase  to  mean  out  of 


604  SUPREME  COURT  CASES, 

Levins  v.  Sleator. 

the  state,  but  in  Whitney  v.  Webb,  10  Ohio,  515,  the  cor- 
rectness of  that  construction  appears  to  be  questioned. 
Judge  Grimke,  in  delivering  the  opinion  of  the  court,  re- 
marks :  ''  I  cannot  help  thinking,  however,  if  the  question 
were  a  new  one,  that  it  would  better  promote  the  ends  of 
justice  and  public  tranquillity  to  say,  as  the  courts  of 
Pennsylvania  have,  that  the  statute  referred  simply  to 
persons  beyond  the  bounds  of  the  United  States." 

In  Whitney  v.  Goddard,  20  Pick.,  304,  it  was  held  that 
a  citizen  of  another  state  is  not  beyond  sea,  and  not  there- 
fore within  the  saving  clause  of  this  statute.  See  also  13 
N.  H.,  80;  14  Peters,  141  ;  11  Wheat.,  361. 

We  conclude,  then,  that  the  court  did  not  err  in  sustain- 
ing the  demurrer  to  the  replication. 

Judgment  affirmed. 
Wilson  f  Smith,  for  plaintiff  in  error. 
Davis  f  Bissell,  for  defendant. 


LEVINS  V.  SLEATOR. 

A  divorce  granted  by  the  Iowa  territorial  legislature  is  good,  if  it  does  not 

appear  to  have  been  granted  for  causes  over  which  the  district  courts  have 
jurisdiction  ;  and  such  divorce  will  bar  the  right  of  dower  as  effectually  a» 
if  the  divorce  had  been  decreed  by  a  court. 

Ereor  to  Dubuque  District  Court. 

Opinion  by  Greene,  J.  This  was  an  action  of  right 
commenced  by  Ann  E.  Sleator  against  Thomas  Levins  for 
an  undivided  third  of  lots  51,  52  and  53  in  the  city  of 
Dubuque,  which  she  claimed  as  dower  under  her  deceased 
husband.  The  defendant's  plea  denied  plaintiff's  right  to 
any  portion  of  the  lots. 

The  case  was  submitted  to  the  court  upon  the  following 


DUBUQUE,  JULY,  1850.  COo 

Levins  v.  SIcator, 

statement  of  facts  :  That  the  plaintiff  was  lawfully  married 
to  David  Sleator  in  February,  1836 ;  that  said  Sleator  was 
owner  in  fee  simple  of  the  lots  in  question  during  cohabi- 
tation ;  and  that  said  Sleator  departed  this  life  some  time 
in  the  j-ear  1848. 

On  the  part  of  defendant  it  was  admitted  by  plaintiff 
that,  upon  the  application  of  David  Sleator,  the  legislature 
of  the  territory  of  Iowa  passed  an  act,  on  the  1 6th  day  of 
February,  1843,  divorcing  the  said  David  Sleator  from  the 
bonds  of  matrimony  contracted  with  the  plaintiff. 

Upon  these  facts  the  court  decided  that  the  plaintiff 
was  entitled  to  dower  in  the  lots,  and  gave  her  judgment 
accordingly. 

To  reverse  this  decision  it  is  now  contended  that  the 
legislature  of  Iowa  had  the  right  to  grant  divorces ;  and 
that  a  divorce  thus  granted  will  bar  the  right  of  dower. 

I.  Had  the  legislature  power  to  grant  the  divorce?  By 
the  organic  law,  Rev.  Stat.,  32,  §  6,  it  is  provided,  "  That 
the  legislative  power  of  the  territory  shall  extend  to  all 
rightful  subjects  of  legislation."  This  language  is  general 
and  comprehensive,  and  shows  that  our  territorial  legisla- 
tm-e  was  invested  with  as  much  power  at  least  as  is  en- 
joyed by  the  most  unrestrained  state  legislatm'es.  The 
power  to  pass  general  divorce  laws  has  been  exercised  by 
every  state  legislature  in  the  union.  Many  of  them  have 
passed  special  acts  of  divorce  upon  individual  applica- 
tions, and  have  granted  divorces  with  such  facility,  and 
upon  such  meagre  showing,  as  to  supersede  the  necessity 
of  judicial  action  in  such  cases.  But  however  much  this 
power  may  have  been  abused  by  legislative  bodies,  it  is 
generally  conceded  that  the  state  and  territorial  govern- 
ments have  complete  control  and  discretion  over  the  sub- 
ject of  divorce.  It  is  a  subject  that  can  be  regulated  by 
no  other  than  the  legislative  department  of  government. 
Our  courts  have  no  inherent  common  law  control  over  the 
matter.  All  the  authority  they  can  exercise  in  granting 
a  divorce  must  be  derived  from  legislative  enactment.  In 
England,  from  whence  we  derive  our  common  law,  a  mar- 


606  SUPREME  COURT  CASES, 

Levins  v.  Sleator. 

riage,  valid  in  its  commencement,  cannot  be  dissolved  for 
any  cause  without  a  special  act  of  Parliament.  1  Black. 
Com.,  441. 

In  Maryland,  Virginia  and  South  Carolina,  no  divorce 
is  granted  but  by  special  act  of  the  legislature,  according 
to  the  English  practice.  But  in  Virginia  the  facts  con- 
stituting the  ground  for  divorce  are  usually  referred  to 
judicial  investigation. 

While  in  a  colonial  condition,  the  courts  in  this  country 
had  no  authority  to  grant  divorces ;  and  after  the  states 
became  independent,  there  was  no  lawful  mode  of  obtain- 
ing divorces  but  by  virtue  of  general  or  special  legislative 
enactment.  This  power  was  exercised  by  the  legislature 
of  New  York  by  passing  special  acts  until  1787 ;  at  which 
time  a  law  was  passed  giving  authority  to  the  court  of 
chancery  to  pronounce  divorces  a  vinculo  in  the  single 
case  of  adultery.  Thus  the  legislature  of  that  state  neces- 
sarily retained  the  power  of  granting  divorces  in  all  other 
cases  which  might  be  considered  justifiable  by  a  majority 
of  the  members.  So  with  our  territorial  courts  and  our 
territorial  legislature.  Without  authority  from  the  legis- 
lature our  territorial  courts  had  not  the  power  to  grant 
divorces  ;  without  such  authority  the  power  could  only  be 
exercised  by  the  legislature,  and  if  it  could  not  be  exer- 
cised by  our  legislature,  it  clearly  could  not  be  exercised 
by  any  department  of  our  territorial  government.  But 
it  is  conceded  that  the  power  did  exist  in  the  territory ; 
hence,  as  the  power  was  not  given  by  Congress  to  our 
courts,  as  they  were  invested  with  no  other  than  general 
common  law  authority,  as  the  legislature  was  the  supreme 
2)ower  of  the  territory,  and  was  invested  with  all  the 
authority  usually  exercised  by  legislative  assemblies,  it 
necessarily  follows  that  the  power  to  grant  divorces  could 
only  be  exercised  by  the  legislature  until  the  district  courts 
were  authorized  to  do  so  by  the  passage  of  the  divorce 
law.  The  courts  could  then  only  grant  divorces  for  the 
causes  enumerated  in  the  act.  For  those  causes,  then,  the 
proceedings  were  authorized  to  be  judicial.     The  power 


DUBUQUE,  JULY,  1850.  607 

Levins  v.  Slcator. 

to  grant  divorces  in  the  cases  enumerated  was  transferred 
from  the  legislature  to  the  district  courts.  As  legislative 
interposition  was  no  longer  required,  as  the  courts  were 
invested  with  ample  authority  in  such  cases  to  decree 
divorces,  the  power  of  the  legislature  to  entertain  concur- 
rent jurisdiction  might  well  be  questioned.  Where  the 
courts  are  authorized  to  grant  divorces,  the  matters  to  be 
investigated  are  of  a  judicial  nature,  and  the  jurisdiction 
ought  to  be  confined  to  the  com-ts. 

Upon  this  point  Chancellor  Kent  remarks  :  "  The  ques- 
tion of  divorce  involves  investigations  which  are  properly 
of  a  judicial  nature,  and  the  jui-isdiction  over  divorces 
ought  to  be  confined  exclusively  to  the  judicial  tribunals 
under  the  limitations  to  be  prescribed  by  law."  2  Kent 
Com.,  106. 

The  legislative  and  judicial  departments  of  the  territory 
were  separate  and  independent.  It  was  not  within  the 
j)rovince  of  either  to  encroach  upon -the  duties  and  author- 
ity of  the  other.  Even  in  cases  where  the  legislature  have 
not  invested  the  courts  with  authority  to  grant  divorces, 
an  act  ordering  a  divorce  is  not  exclusively  an  exercise 
of  legislative  power.  Although  the  act  may  be  done  in 
the  form  of  legislation,  and  in  the  usual  manner  of  pass- 
ing a  law,  still  the  parties  affected,  the  subject  matter 
submitted,  the  question  to  be  investigated  and  the  deci- 
sion made,  are  in  every  respect  assimilated  to  judicial 
proceedings,  and  should  be  addressed  to  the  exercise  of 
judicial  ]30wer.  If,  then,  this  power  in  the  legislatures  of 
the  several  states  had  not  been  generally  recognized  by 
the  courts  of  this  country,  if  so  many  divorces  had  not 
been  granted  by  legislative  action,  and  if  the  domestic 
relations  and  rights  of  property  resulting  from  such 
divorces  would  not  be  deranged  to  an  ahirming  extent  by 
the  decision,  we  should  at  once  unite  in  the  conclusion 
that  the  legislature  had  not  authority  to  grant  a  divorce 
in  any  case.  Still  we  are  of  the  opinion  that  the  legisla- 
ture has  not  the  authority  to  assume  judicial  power,  by 
granting   divorces   for   such    causes   as    the   courts   have 


608  SUPREME  COURT  CASES, 

Levins  v.  Sleator. 

authority  to  adjudicate.  But  it  does  not  follow  that 
tliej^  may  not  grant  divorces  for  other  justifiable  causes 
which  are  not  enumerated  in  the  law.  The  grounds  upon 
which  the  divorce  at  bar  was  granted  are  not  shown. 
As  the  contrary  does  not  appear,  we  must  -presume  that 
the  legislature  acted  correctly,  and  granted  the  divorce 
for  other  causes  than  those  enumerated  in  the  divorce 
law. 

But  it  is  contended  that  the  act  of  divorce  is  in  conflict 
with  that  clause  in  the  federal  constitution  which  provides 
that,  "  No  state  shall  pass  a  law  impairing  the  obligation 
of  contracts."  This  point  is  presented  by  counsel  with 
much  ability,  and  is  supported  by  many  sound  arguments. 
But  still  we  cannot  feel  authorized  to  change  the  uniform 
current  of  judicial  decision  in  relation  to  legislative  di- 
vorces. That  marriage  is  a  contract,  and  has  connected 
with  it  an  investiture  of  rights  and  property,  has  never 
been  seriously  controverted.  And  still  the  doctrine  ap- 
pears to  be  equally  well  settled  that  the  legislatures  of  the 
several  states  have  constitutional  power  to  provide  for 
divorces,  on  the  principle  that  marriage  is  a  contract  of 
reciprocal  obligations,  and  that  they  may  determine  by 
law  what  shall  amount  to  a  breach  on  either  side,  and 
impose  as  a  penalty  the  forfeiture  of  the  rights  acquired, 
and  a  release  from  the  contract. 

In  2  Kent's  Com.,  107,  it  is  remarked,  that  "  it  has 
generally  been  considered  that  the  state  governments  have 
complete  control  and  discretion "  in  divorce  cases.  In 
Dartmouth  College  v.  Woodfcard,  4  Wheat.,  518,  the  chief 
justice  observed  that  the  constitution  of  the  United  States 
had  never  been  understood  to  restrict  the  general  right  of 
the  legislatures  of  the  state  to  legislate  on  the  subject  of 
divorces ;  that  the  object  of  the  divorce  was  not  to  impair 
a  contract,  but  to  liberate  one  of  the  parties  because  it  had 
been  broken  by  the  other.  Another  of  the  judges  ex- 
pressed an  opinion  to  the  same  effect,  and  remarked,  that 
*'  a  law  punishing  a  breach  of  a  contract  by  imposing  a 
forfeiture  of  the  rights  acquired  under  it,  or  dissolving  it. 


DUBUQUE,  JULY,  1850.  609 

Levins  v.  Sleator. 

because  the  mutual  obligations  were  no  longer  observed,  was 
not  a  law  impairing  the  obligation  of  contracts." 

Chancellor  Kent  assumes  that  in  ordinary  cases  the 
constitutionality  of  the  laws  of  divorce,  in  the  respective 
states,  is  not  to  be  questioned. 

In  Starr  v.  PMse,  8  Conn.,  541,  >it  was  adjudged  that 
the  legislative  divorces  a  vinculo  for  causes,  were  con- 
stitutional and  valid.  Under  these  authorities,  we  must 
conclude  that  the  legislative  divorce  obtained  by  Sleator 
is  constitutional. 

2.  The  remaining  point  to  be  considered  is,  Does  this 
legislative  divorce  bar  the  right  of  dower  ?  It  is  obvious 
that  a  divorce  au1:horized  by  the  legislature  has  all  the 
validity  and  force  of  one  decreed  by  a  court.  The  divorce 
terminated  the  relation  of  husband  and  wife;  consequently 
A.  E.  Sleator,  at  the  death  of  David  Sleator,  could  claim  no 
benefit  from  his  estate  from  that  relation.  She  was  not  his 
wife ;  in  that  particular  she  was  legally  dead,  and  conse- 
quently could  acquire  no  dower  in  his  land  upon  his  demise. 

After  the  divorce,  D.  Sleator  may  have  married  a  second 
wife ;  and  if  she  had  survived  him  as  his  wife,  her  right  of 
dower  to  his  real  estate  could  not  be  questioned.  It  will 
hardly  be  claimed  that  there  could  be  two  rights  of  dower 
in  the  same  estate. 

It  matters  not  whether  the  divorce  is  legislative  or  judi- 
cial, the  same  consequences  and  forfeiture  must  ensue  from 
either.  As  this  point  is  vii-tually  conceded  in  the  argument, 
it  is  unnecessary  to  enlarge  upon  it.  We  are  of  the  opinion 
that  the  court  below  erred  in  not  admitting  the  legislative 
divorce  as  a  bar  to  the  action. 

Judgment  reversed. 

P.  Smith  and  B.  M.  Samuels,  for  plaintiff  in  erroj*. 

W.  J.  Barney^  T,  Rogers,  S.  Hempsted  and  James 
Burt,  for  defendant. 

Note.— other  cases  decided  in  1850,  Imt  in  which  opinions  were  subse- 
quently delivered,  will  appear  in  the  fliird  volume. 


INDEX. 


A 

ACCORD  AND  SATISFACTION. 

1.  E  and  J  executed  their  partnership 
note  to  F  ;  before  the  note  became 
due  E  and  J  dissolved  partnership, 
and  it  was  agreed  that  E  shouW  take 
the  goods  and  credits,  and  pay  the 
debts  of  the  firm.  F  approved  the 
arrangement,  and  promised  to  re- 
turn the  partnership  note,  and  take 
in  satisfaction  the  individual  note 
of  E,  and  give  J  a  receipt ;  but  the 
old  note  was  not  given  up,  nor  was 
a  new  note  or  receipt  given.  F  sued 
E  and  J,  but  obtained  service  and 
judgment  oaly  against  E,  who  was 
afterwards  discharged  from  the  juda;- 
ment  by  a  decree  in  bankruptcy  ; 
afterward  proceedings  were  com- 
menced by  scire  facias  against  J, 
to  make  him  a  party  to  the  judg- 
ment :  held  that  the  agreement 
between  the  parties  did  not  show  a 
release  to  J,  or  an  accord  and  satis- 
faction ;  that  it  was  only  an  execu- 
tory agreement.  Frentress  v.  JLfu?-- 
kle, 553 

2.  A  release  is  an  executed  contract, 
and  must  be  under  seal,  .       ib. 

3.  An  accord  not  executed  is  no  bar 
to  an  action,  ....       ib. 

4.  An  accord  and  satisfaction,  to  con- 
stitute a  legal  bar  to  an  action,  must 
be  full,  perfect  and  complete,       ib. 

5.  In  order  to  have  a  promise  operate 
as  a  satisfaction,  it  must  be  that 
of  a  third  person  ;  something  over 
and  above  the  original  promise  or 
indebtedness,         .  ,      ib. 


ACCOUNT. 

1.  An  item  in  an  account,  designated 
as  a  "cash  balance  on  settlement, 
S50, "  is  sufficiently  specific.  Cham- 
bers V.  Games,        .         .         .320 


ACTION  OF  RIGHT. 

1.  The  "act  to  allow  and  regulate  the 
action  of  riglit,"  provides  a  remedy 
to  recover  the  possession  of  land, 
and  also  a  remedy  to  determine  the 
title.     Kerr  \.  Leighton,        .     196 

2.  To  enable  the  plaintiff  to  recover 
in  an  action  of  right',  it  should 
appear  that  the  defendant  acted  as 
owner,  landlord  or  tenant  of  the 
property  claimed  ;  and  if  as  tenant, 
that  he  was  in  possession,       .       ib. 

3.  Where  the  defendant  pleads  to  an 
action  of  right,  in  the  form  pro- 
vided by  statute,  he  virtually 
admits  himself  in  possession.  As 
possession  is  not  denied  hy  such  a 
plea,  it  need  not  be  proved,  ib. 

4.  If  plaintiff  seeks  to  rt-cover  more 
than  nominal  damages  for  with- 
holding the  premises  in  an  action 
of  right,  proof  of  the  time  and  cir- 
cumstances becomes  essential,      ib. 

5.  In  an  action  of  right,  the  jury  re" 
turned  a  verdict,  "  We  find  tlia 
plaintiff  entitled  to  no  part  of  lot, 
&c.,  at  this  time,  but  is  entitled  to 
§;i2.50  damages  ;  and  that  the 
defendant  is  entitled  to  and  took 
possession  of  the  lot  under  color  of 
title  :"  held  that  on  such  a  verdict 
a    judgment    might   be   rendered, 


612 


INDEX. 


and  that  the  plaintiff  might  recover 
upon  a  less  title  than  that  set 
forth  iu  the  declaration,  Olive  v. 
JJaugherty,     .        .        .        .393 


ADMISSION. 

1.  An  admission  by  way  of  demurrer 
to  a  plea,  in  which  the  facts  are 
alleged,  is  just  as  available  as 
though  the  admission  had  been 
made  ore  tenus  before  a  jury. 
Coffin  V.  Knott,       .        .        .682 


AFFIDAVITS. 

Bu  JUBOBS,  1. 

AGENT. 
See  Notice,  9. 

AGREEMENT. 

1.  Plaintiff  agreed  to  do  work  for 
defendant,  and  take  land  for  pay- 
ment. Defendant  contracted  to 
make  a  good  title  to  the  land,  on 
the  performance  of  the  work,  but 
the  title  was  not  in  him  :  held  that 
plaintiff  was  at  liberty  to  rescind 
the  contract,  and  was  not  obliged 
to  do  the  work,  and  that  if  he  did 
the  work,  he  was  entitled  to  pay- 
ment as  on  a  cash  contract  to  do 
work.     Fitch  v.  Casey,  .     300 

2.  Where  a  grantor  reserves  a  house, 
rails,  &c.,  which  were  on  a  strip  ten 
rods  wide  and  one  hundred  and 
sixty  rods  long,  on  the  west  side  of 
the  quarter  section  of  land  sold, 
but  tlie  house,  &c.,  were  afterwards 
found  to  be  a  short  distance  east  of 
tlie  ten  rod  strip,  it  was  held  that 
the  grantor  was  entitled  to  the 
house.     Gavcny  v.  Hinton,     .     344 

3.  Course  and  distance  should  yield 
to  natural  and  artificial  objects, 
which  are  made  part  of  the  de- 
scription of  land,    .         .         .       ib. 

4.  In  construing  contracts,  that  which 
is  most  natural  and  certain,  and 
most  conformable  to  the  intention 
of  the  parties,  should  prevail,       ib. 

5.  In  an  action  upon  an  agreement, 
with  mutual  and  dependent  condi- 
tions, the    plaintiff,  to  sustain  his 


demand,  must  account  for  all  he 
undertook  under  the  agreement, 
and  the  defendant,  to  sustain  his 
set-off,  must  estabUsb  each  item  of 
his  demand  by  proof.  Springer  v. 
Stewart,  ....     390 

6.  A  written  agreement  between  D 
and  F,  stipulated  that  D  should  fur- 
nish certain  kinds  of  goods  at  25 
per  cent.,  and  other  kinds  at  10 
per  cent,  advance,  and  concluded 
with  the  stipulation  :  "  All  goods 
billed  at  25  per  cent,  payable  in 
six  months,  at  10  per  cent,  in  four 
months,  by  adding  10  per  cent, 
interest :"  held  that  the  interest 
should  be  charged  on  the  goods 
furnished  at  25  per  cent,  as  well 
as  on  those  furnished  at  10.  Davis 
V.  Fish,  ....     447 

7.  An  agreement  stipulated  that  the 
defendant  should  build  a  house  in 
a  certain  manner,  and  have  it  com- 
pleted on  or  before  the  1st  day  of 
March,  1845,  for  which  the  plaintiff 
paid  $400  down,  and  was  to  pay 
$t)00  on  the  said  1st  day  of  March. 
In  an  action  on  the  agreement  for 
failing  to  complete  the  house  within 
the  time  and  in  the  manner  speci- 
fied, the  declaration  averred,  that 
the  plaintiff"  was  ready  and  prepared 
to  pay  according  to  the  effect  of 
the  agreement :  held  that  the  de- 
claration was  good  without  alleging 
the  payment,  or  an  offer  to  yay 
the  $600.     Lucas  v.  Snyder,       4!'b 

See  Accord  and  Satisfaction,!, 
Equity,  5. 

Husband  and  Wife,  4,  5,  6. 
Land,  2,  3,  4, 
Specific  Performance,  1. 


AMENDMENT. 
See  Bond,  3. 

APPEAL. 

See  Jurisdiction,  8. 

Justice  of  the  Peace,  7,  11. 
Practice,  13,  14,  24. 

APPEARANCE. 

1."  Where  a  party  before  a  justice  of 
the  peace  moves  for  a  continuance 
of  the    cause  and  for  a  change  of 


INDEX. 


613 


venue  before  objecting  to  the  sum- 
mons, such  acts  will  amount  to  a 
general  appearance,  which  cures  all 
defects  iu  the  form  and  service  of 
process.     Shaffer  v.  Trimble,       464 

See  Forcible  Entry  and  De- 
tainer, 1. 
Jurisdiction,  8,  9. 
Writs,  1. 

ATTACHMENT. 

1.  An  attachment  is  vacated  by  a 
judgment  of  nonsuit  against  the 
plaintiff.     Brown  v.  Harris,       505 

2.  Where  a  nonsuit  is  set  aside,  and  a 
new  trial  granted,  the  attachment 
lien  vacated  by  the  nonsuit  is  not 
revived,  ....      ib. 

3.  If  the  plaintiff  in  an  attachment 
suit  before  a  justice  of  the  peace 
recovers  a  judgment  for  less  than 
$5,  it  does  not  follow  that  he  is 
liable  on  the  attachment  bond. 
Bradley  v.  McCall,         »         .214 

4.  In  an  attachment  suit  before  a 
justice,  the  demand  cannot  be  less 
than  %5,  but  the  judgment  may,  ib. 

6.  In  a  suit  commenced  by  attach- 
ment, a  general  judgment  was 
rendered,  and  upon  it  a  special 
execution  issued,  on  which  the  \)to- 
perty  attached  was  sold  •  held  that 
the  sale  was  vaJid.  Corriell  v. 
Doolittle,        .         .         .         .385 

6.  An  attachment  will  hold  all  chat- 
tels, moneys  or  evidences  of  debt, 
or  any  interest  which  the  debtor 
may  have  in  them.  Robinson  v. 
Moriarty,       .         .         .         .497 

7.  The  second  section  of  the  attach- 
ment act,  which  authorizes  an  issue 
and  jury  trial  of  the  facts  upon 
which  the  attachment  issued,  is  not 
repealed  by  the  amendatory  act  of 
18i6.     Letois  v.  Satliff,  .     186 

ATTESTATION. 

1.  Where  the  certificate  of  a  j  iJ^-*  is 
not  dated,  but  is  preceded  and  fol- 
lowed by  certificates  of  the  clerk, 
the  first  dated  on  the  18th,  and  the 
other  on  the  31st  of  July,  the  defect 
is  cured.     Lewis  v.  Sutliff,  186 

2.  In  a  writ  under  seal,  the  seal  should 
be  named  or  referred  to  in  the 
attestation.     Rif/ffs  v.  Bagley,     383 

Sec  Evidence,  4. 


ATTORNEY. 

1.  Where  an  attorney  is  appointed 
by  the  court  to  defend  a  pauper 
prisoner,  the  county  is  liable  for 
his  fees.  Hall  v.  Washinyton 
Co., 473 

2.  Whicker  v.  Cedar  Co.,  1  G.  Greene, 
217,  overruled,       .         .         .       ib. 

3.  The  supreme  court  is  not  authorized 
to  grant  a  lien  upon  a  judgment  for 
an  attorney's  fees,  as  it  would  be  an 
exercise  of  original  jurisdiction. 
Preston  v.  Daniels,        .        .    536 

See  Equity,  1,  2. 
Judge,  1,  2. 
Practice,  16. 


AWARD. 

1.  Affidavits  may  be  admitted  in  sup- 
port of  a  motion  to  recommit  an 
award  to  arbitrators,  and  if  no 
objection  was  raised  to  the  affidavit 
in  the  district  court,  none  will  be 
entertained  in  the  supreme  court. 
Depew  v.  Davis,     .        .        .     260 

2.  An  award  may  be  recommitted 
under  the  statute,  where  a  legal 
and  sufficient  reason  is  given.  A 
reason  that  will  justify  an  arrest 
of  judgment,  or  a  new  trial,  will 
justify  a  recommitment,         .       ib. 

3.  An  award  should  not  be  rejected 
unless  a  want  of  jurisdiction  is 
apparent  in  the  arbitration,  ib. 

4.  An  award  may  be  recommitted  on 
the  ground  of  newly  discovered 
evidence,        ....»&. 


B 

BANKRUPTCY. 

A  "Ifcree  in  bankruptcy,  under  the 
geaeral  law  of  Congress,  ordered 
by  a  court  of  competent  general 
jurisdiction,  cannot  be  collaterally 
drawn  in  question.  WriylU  v. 
Watkins,  .         .         .547 

,  The  territorial  district  courts  were 
invested  witli  full  power  to  adju- 
dicate causes  in  bankruptcy,         ib. 

See  Pleadings,  17. 


614 


INDEX. 


BASTARDY. 

1.  A  proceeding  against  the  father 
for  the  support  of  his  illegitimate 
child  is  not  in  the  nature  of  a 
criminal  action,  and  therefore  under 
the  constitution  the  defendant  is 
exempt  from  imprisonment;  and 
that  portion  of  the  bastardy  act 
which  authorized  such  imprison- 
ment is  repealed  by  the  constitu- 
tion.    Holmes  v.  The  State,    .    601 


BILL  OF  PARTICULARS, 

1.  Where  a  bill  of  particulars  is  as 
definite  as  the  nature  of  the  trans- 
action will  permit,  it  is  sufficient. 
Mix  V.  Ely,    ....     513 

2.  In  an  action  on  a  piomissory  note, 
where  a  copy  of  it  is  filed  with  the 
declaration,  no  other  bill  of  parti- 
culars is  required.  Galloway  v. 
Trout, 593 

See  Mechanics'  Lien,  2. 
Set-off,  4. 


BOND. 

1.  An  instrument  not  under  seal  is 
not  a  bond.  Steamboat  "  Lake  of 
the  Woods"  V.  Shaw,       ,         .       91 

2.  An  instrument  with  all  the  other 
requisites  of  a  bond,  is  not  one 
unless  signed  and  sealed  by  the 
parties  making  it.  Ciuidlcback  v. 
Parks, 148 

3.  A  recognizance  cannot,  after  an 
appeal,  lie  converted  into  a  bond 
by  amendment,      .         .         .       ib. 

i.  Where  the  execution  returns  stale 
"no  property  found,"  it  is  suffi- 
cient to  justify  an  action  on  a 
replevin  bond  under  the  statute 
requiring  a  return,  "  tliat  sufficient 
property  of  the  plaintiifs  cannot  be 
found,"  &c.    Cameron  v.  Boyle,  154 

See  Pleadings,  12. 
Practice,  39,  42. 


c 

CAPIAS. 

1.  By  the  statute  of  1844,  all  laws 
were    repealed     which    authorized 


the  issuing  of  a  capias  and  holding 
to  bail  in  civil  suits.  Westbrook 
V.  Westbrook,  .         .         .598 

2.  A  petition  for  alimony  is  in  the 
nature  of  a  civil  proceeding,  in 
which  a  capias  and  holding  to  bail 
are  not  authorized,         .  .       ib. 

3.  Where  a  capias  is  improperly  sued 
out,  it  cannot  be  held  good  as  a 
summons,      ....       ib. 


CERTIORARL 

1.  In  a  case  taken  to  the  district  court 
by  certiorari  an  affirmance  or  a  new- 
judgment  maybe  rendered  "as  the 
right  of  the  matter  may  appear." 
Wright  V.  Phillips,         .         .191 

2.  Where  a  case  is  taken  to  the  dis- 
trict court  by  certiorari,  and  the 
judgment  of  the  justice  is  reversed, 
it  is  error  to  order  a  trial  de  novo 
in  the  district  court.  Davis  v. 
Cur/is, 575 

3.  A  judgment  cannot  summarily  he 
rendered  against  a  surety  in  a  case 
taken  to  the  di'^trict  court  by  co-ti- 
orari,  as  it  may  be  in  cases  taken 
up  by  appeal.    Smith  v.  Bissell,  379 


See  Practice,  15. 


CHANGE  OF  VENUE. 

1.  Application  for  a  change  of  venue 
may  be  made  to  a  justice  of  the 
peace  at  any  time  after  the  appear- 
ance of  parties,  and  before  the  jury 
is  sworn,  or  the  trial  submitted  to 
the  justice.     Lyne  v.  Hoyle,       135 

2.  Where  a  petition  for  a  change  of 
venue  sets  forth  the  requisite  facts, 
verified  by  the  affidavit  of  the  party, 
it  is  the  duty  of  the  judge  to  grant 
the  change  to  the  nearest  county, 
without  any  further  jjroof  or  in- 
quiry.    Cass  V.  State,  .     353 

3.  The  statute  of  1845  requires,  in 
criminal  cases,  the  facts  stated  in 
the  petition  to  be  verified  by  the 
affidavit  of  at  least  two  respectable 
witnesses,    ....         ib. 

4.  If  a  party  complies  with  the  stat- 
ute, in  his  application  for  a  change 
of  venue,  the  court  has  no  discre- 
tion to  refuse,  but  should  grant  the 
change  to  the  nearest  county  not 
made  objectionable  by  the  petition, 
without  requiring  any  other  testi- 


INDBX. 


615 


mony  than  the  petition  and  affi- 
davit, ....        ib. 

CLERKS. 

See  Election,  2. 

F££B. 

COMMON  LAW. 

1.  A  rule  of  common  law  is  not  re- 
pealed by  implication.  Ooodmn 
T.  Thompson,         .        .        .    829 


CONSTRUCTION. 

See  Agreement,  47. 
Statute,  5,  6,  7,  8. 


CONTINUANCE. 
See  Pbaotice,  16. 

CONTRACT. 

See  AOBEEMENT. 

CONVEYANCE. 

I,  Under  the  Michigan  statute  of 
1827,  in  relation  to  conveyances,  an 
unrecorded  deed  cannot  prevail 
against  a  subsequent  purchaser, 
who  had  his  deed  recorded  iirst. 
Hopping  V.  Barnam,      .         .       39 

2»  Under  the  registry  law  of  1840  no 
conveyance  is  valid  except  between 
the  parties  thereto  and  such  as  have 
had  actual  notice  thereof,  until  it  is 
deposited  for  record,      .  .       ib. 

3.  Deeds  executed  before  the  registry 
act  of  1840,  should  be  recorded 
under  it,  the  sauie  as  deeds  exe- 
cuted subsequent  to  the  passage  of 
the  law,         ....       ib. 

4.  A  deed  for  land  first  filed  for  re- 
cord, though  subsequently  dated, 
will  prevail,  .         .         .      ib. 

See  Covenants. 
Dbbd. 

CORPORATIONS. 

1.  All  acts  of  incorporation  are  made 
public,  and  as  such  may  be  given 


in  evidence.  Such  an  act  creates 
the  presumption  that  the  corpora- 
tion dii-s  exist  de  facto.  Durham 
V.  Daniels,     ....     618 


COSTS. 

Counties  are  liable  for  costs  in 
criminal  cases,  in  which  nolle  prose- 
qui are  entered,  or  in  which  indict- 
ments are  quashed,  or  demurrers 
to  them  are  sustained.  Bonney 
V.  Van  Buren  Co.,  .        .    230 


COUNTY  ORDERS. 

.  An  action  may  be  maintained 
against  the  commissioners  of  a 
county,  on  a  general  unconditional 
order  drawn  by  them  for  the  pay- 
ment of  money.  Steel  v.  Davis 
Co., 469 

.  The  rule  that  an  order  must  be 
presented  for  payment  within  a 
reasonable  time,  and  notice  of  its 
dishonor  given  to  the  drawer,  is  not 
applicable  to  county  orders,    .     ib. 


COURTS. 

1.  It  is  the  right  and  duty  of  the  ju- 
dicial power  in  the  state  to  declare 
all  acts  of  the  legislature  made  in 
violation  of  the  constitution  to  be 
void.     Reid  v.  Wright,  .       15 

2.  The  act  of  1839,  authorizing  dis- 
trict judges  to  hold  special  terms 
of  court  whenever  they  deem  it 
necessary,  was  not  repealed  by 
subsequent  acts  passed  to  fix  and 
change  the  time  for  holding  court. 
The  eighth  section  of  said  act  is 
not  repugnant  to  the  organic  law 
nor  to  tUe  state  constitution  of 
Iowa,     flarriman  v.  State,    .     270 

3.  Notice  of  a  special  term,  as  directed 
by  the  act  of  1S39,  is  not  an  essential 
prerequisite  to  confer  jurisdiction. 
The  statute  providing  for  the  notice 
is  directory.  It  will  be  presumed 
that  the  notice  was  given,  even 
if  the  record  does  not  state  the 
fact, ib. 

4.  A  decision  of  the  territorial  su- 
preme court  will  not  be  overruled 
unless  palpal  ily  erroneous.  Ilildreth 
V.  Tomlinson.  .         .         .     36() 

5.  The  act  of  the  legislature  creating 


616 


INDEX. 


two  jury  districts,  and  appointing 
two  different  places  to  hold  the  dis- 
trict court  in  Lee  county,  is  not 
iinconstitutional.  Kinney,  J.,  con- 
tra.    Trimble  v.  State,  .     404 

6.  Nothing  should  be  presumed 
againBt  the  authority  or  proceed- 
ings of  a  court  of  general  jurisdic- 
tion.    Wright  v.  Watkins,      .     547 

7.  It  is  error  to  receive  a  verdict  and 
render  a  judgment  after  the  term 
of  a  court,  as  designated  by  law, 
has  expired,  and  on  a  day  fixed  for 
a  term  of  court  in  another  county. 
Orable  v.  State,     .        .        .659 

8.  Where  a  term  of  court  is  appointed 
by  law  to  be  held  in  Clinton  county 
on  Monday,  and  in  Scott  county  on 
the  following  Thursday,  the  term 
in  Clinton  county  ends  on  Wednes- 
day evening,  .         .         ,       ib. 

9.  Explains  power  of  the  district 
judge  to  appoint  special  terms  of 
court ;  reasonable  notice  must  be 
given, ib. 

10.  Two  terms  of  the  district  court 
cannot  be  held  in  one  district  on 
the  same  day,         .         .         .       ib. 

See  Cektiokari. 
Fraud,  2. 

JnDGE. 

Jurisdiction, 


COVENANT. 

1.  If  A  covenants  to  make  B  a  good 
and  sufficient  deed,  B  is  not  obliged 
to  take  the  deed,  unless  A  has  a 
good  and  indefeasible  estate  in  the 
land  covenanted  to  be  conveyed. 
Fitch  V.  Casey,      .        .        .     300 

2.  Dependent  and  independent  cove- 
nants explained,    .         .         .       ib. 

See  FLEADmo,  10. 

D 

DAMAGE. 

Su  Action  of  Right,  45. 
Prairie  Firb. 
Pbaotioe,  17, 22,  39,40, 42. 

DEBT. 
See  PLBASiKa,  1, 16. 


DECISION. 
See  Courts,  4. 

DECLARATION. 
See  Plbadino. 

DECREE. 
See  Bai^£buptot,  1. 

DEED. 

.  A  tax  deed  is  not  good  which  con- 
veys more  land  than  was  assessed 
or  advertised  for  the  taxes.  Fitch 
V.  Casey,         .         .         .         .300 

.  Under  the  statute,  a  special  cove- 
nant at  the  end  of  a  deed,  in  which 
the  grantor  warrants  against  all 
claims  from  or  under  him,  does  not 
limit  or  explain  the  more  general 
warranties  which  are  covenanted 
by  the  Wf)rds,  "  grant,  bargain  and 
Bell."     Brown  v.  Tomlinson,       525 

.  A  restraint  by  implication  upon 
such  general  warranties  is  not  au- 
thorized by  statute ;  it  must  ba 
positive  and  expressed,  .       ib. 

See  CONVEYANOB. 

Covenant. 
Equity,  4. 

DEFAULT. 

See  Error,  5. 

Practice,  23,  20. 

DELIVERY. 

1.  Where  no  place  is  appointed  for 
the  delivery  of  specific  articles,  the 
debtor  must,  before  the  day  of  pay- 
ment, ascertain  from  the  creditor,  if 
practicable,  where  he  will  receive 
the  goods.     Phillips  v.  Cooley,  456 

See  Tender. 

DEMURRER. 

See  Pleadinq. 

Pbaotiob,  1,  2,  Z,  97> 


INDF.X.. 


617 


DEPOSIT. 

See  Garnishment,  6. 
Partnkkship,  7. 


DEPOSITION. 

1.  Where  depositions  are  taken  by 
the  procurement  and  for  the  benefit 
of  a  prisoner,  and  are  not  read  to 
the  jury  by  his  coniisel,  they  may 
be  read  by  counsel  for  the  state,  if 
they  were  filed  and  properly  in  the 
custody  of  the  court,  Nash  v. 
State 286 


DETINUE. 

1.  The  action  of  detinue  will  lie  in 
Iowa,  and  may  be  maintained  for  a 
pistol,  or  any  other  chattel  that  may 
be  so  identified  as  to  be  recovered 
in  specie.      Wnyht  v.  Ross,    .     266 

2.  A  statement  before  a  justice  of  the 
peace  is  sufficiently  specific  in  det- 
inue, which  describes  the  property 
as  "  a  six  barreled  pistol,  called  a  sis 
shooter  or  revolver,"      .         .       ib. 

DESCRIPTION. 

'X,  A  defective  description  of  land  in 
a  levy  is  cured  by  a  con-ect  descrip- 
tion in  the  sheriff's  deed,  when  it 
shows  that  the  land  conveyed  is 
the  same  on  which  the  levy  has 
been  made. 

See  Agreement,  2,  3. 
Mortgage. 


DIVORCE. 

1.  A  divorce  granted  by  the  Iowa  ter- 
ritorial legi.slature  is  good,  if  it  does 
not  appear  to  have  been  granted 
for  causes  ovei-  which  the  district 
courts  have  jurisdiction  :  and  such 
divorce  will  bar  the  right  of  dower 
as  effectually  as  if  the  divorce  had 
been  decreed  by  a  court.  Levins 
V.  Sltator,      .        .         .        .604 


DOWER. 

See  Divorce. 

Vol.  II 


E 

ELECTIONS. 

1.  The  election  in  August,  1848,  was 
the  second  gener  ,  election  under 
the  constitution.      State  v.  Gadle, 

400. 

2.  Clerks  of  the  district  court  and 
prosecuting  attorneys  should  be 
biennially  elected  at  the  general 
elections,       ....      ib. 


ELISOR. 
See  Sheeiff. 

EQUITY. 

1.  If  the  attorney  of  a  party  by  fraud- 
ulent representations  procure  his 
opponent's  defeat  in  court,  or  if  an 
attorney  appear  and  act  for  a  party 
without  his  knowledge  or  authority, 
the  party  injured  may  be  relieved 
in  a  court  of  equity,  on  the  ground 
of  fraud.     De  Louis  v.  Meeh,       55 

2.  If,  in  a  compromise  partition,  the 
petitionei-s  or  their  attorneys  act 
fraudulently  by  misrepresentation 
or  concealment,  the  party  injured 
is  entitled  to  relief  in  equity,       ib. 

3.  Equity  will  afford  relief  to  those 
who  are  indirectly  injured  by  offi- 
cial fraud  or  misconduct,  as  well 
as  to  those  who  are  directly  injured 
by  such  fraud.  Austin  v.  Car- 
penter, ....     131 

4.  In  equity,  mistakes  in  a  deed  will 
be  corrected,  as  against  subsequent 
purchasers  with  notice.  Warburton 
V.  Lauman,    ....     420 

5.  Altliough  contracts  cannot  be 
changed,  they  may  be  corrected  so 
as  to  enfoi'ce  the  intention  of  the 
parties,  ....       ib. 

6.  Where  funds  collected  by  a  sheriff 
on/,  fa.  were  demanded  by  D  and 
N,  and  also  by  P  and  H,  and  each 
party  showed  an  equal  right  to 
them,  it  was  held  D  and  N  had 
not  a  plain  and  adequate  remedy  at 
law,  and  that  they  might  proceed  in 
eciuity.     Preston  v.  Daniels,       536 

7.  Where  from  any  defect  in  the  com- 
mon law,  want  of  foresight  in  the 
parties,  or  other  mistake  or  acci- 
dent, there  would  be  a  failure  of 

40 


61S 


INDEX. 


justice,  it  is  the  duty  of  a  court  of 
equit}'  to  interfere  and  supply  the 
defect  or  furnish  the  remedy,      ib. 

See  Fraud,  2,  3. 

Husband  and  Wife,  5. 
jukisdiction,  1,  4,  5. 
Pleading,  1,  2,  3,  4,  5. 
Specific  Performance. 

ERROR. 

1.  It  is  not  error  to  preclude  an  an- 
swer to  irrelevant  or  immaterial 
evidence.     Hopping  v.  Burnam,  39 

2.  The  neglect  of  the  court  to  render 
a  judgment  non,  obstante  veredicto, 
on  the  ground  of  an  insufficient  plea, 
cannot  be  urged  as  error,  unless  a 
motion  was  made  for  such  a  judg- 
ment, and  exception  taken  to  the 
ruling  of  the  court.  Coonrod  v. 
Benson,  .         .         .         .179 

3.  It  is  not  error  to  exclude  imma- 
terial testimony.  Bradley  v.  Ken- 
nedy  231 

4.  Errors  will  not  be  favorably  re- 
garded which  are  based  upon  the 
negligence  of  the  party  assigning 
them.     Mears  v.  Garretson,   .     316 

6.  It  is  error  to  render  judgment  by 
default  against  a  party,  unless  he 
was  legally  served  with  process. 
Diltz  V.  Chambers,  .         .     479 

6.  After  the  death  of  a  party  is  sug- 
gested, it  is  error  to  render  judg- 
ment against  him.     Nelson  v.  Gray, 

397 
See  Courts,  7. 
Replevin,  1. 

ESTATE. 

1.  No  suit  should  be  brought  against 
an  estate  upon  a  claim  for  less  than 
$25,  until  the  claim  has  been  pre- 
sented, as  required  by  statute,  to 
the  representative  of  the  estate, 
and  payment  refused.  Galloway  v. 
Trout, 595 

See  Evidence,  7. 

Mechanics'  Lien,  7,  8. 


EVIDENCE. 

1 .   ^documentary. 
1.  A  pre-emption  certificate  not  evi- 


dence   of    legal    title,     Arnold' 
Grimes,         .         .         .        .77 

2.  In  an  action  for  libel,  where  M 
published  that  R  was  a  defaulter,  a 
mortgage  executed  by  R  to  the 
United  States,  and  the  record  of 
foreclosure,  are  admissible  as  evi- 
dence of  R's  indebtedness  to  the 
government.  Roberts  v.  Miller,  122 

3.  Any  action  by  Congress  or  the  de- 
partments of  government,  subse- 
quent to  the  libelous  publication, 
not  admissible  as  rebutting  evi- 
dence,   .         .         .         .         .       ib. 

4.  The  certificate  of  a  judge,  that  tlie 
transcript  of  a  record  is  attested  in 
due  form,  is  authentic  evidence  of 
its  correctness.     Lewis  v.  Sutliff, 

isr, 

5.  A  duplicate  receipt  or  certificate 
from  the  receiver  or  register  of  a 
land  office,  is  made  by  statute 
prima  facie  evidence  of  title  in 
actions  of  trespass,  right,  &c.  Bur- 
lerson  v.  Teeple,      .         .         .     542 

2.  Miscellaneous. 

6.  Evidence  of  fraud,  covin,  or  ille- 
gality of  consideration,  is  not  allow- 
able as  defence  under  the  plea  of 
non  est  Jactum.    Chambers  v.  Games. 

320 

7.  In  a  trial  before  a  probate  court,  to 
charge  an  estate  with  an  old  judo-- 
ment  which  is  claimed  to  have  been 
satisfied  by  a  levy  of  property,  proof 
is  admissible  to  show  that  one  of  the' 
defendants  in  the  judgment  was  a 
securit}',  and  that  the  principal  be- 
came insolvent  after  his  property 
was  levied  upon  to  satisfy  the  judg- 
ment.    Lucas  V.  Cassady,      .     208 

8.  In  an  action  of  trespass  for  de- 
bauching plaintiff's  daughter,  if  hus 
did  not  actually  connive  at  the 
guilty  intercourse,  evidence  of  loss 
occasioned  by  it  will  justify  a  re- 
covery. Proof  of  careless  indiffer- 
ence could  only  go  in  mitigation  of 
damages.     Zerfing  v.  Mourer,     520 

9.  To  sustain  the  plea  of  justification 
to  an  action  of  slander,  the  testi- 
mony of  more  than  one  witness,  or 
of  one  witness  and  strong  corrobo- 
rating circumstances,  are  necessary. 
Bradley  v.  Kennedy,      .         .     231 

See  Corporations. 
Error,  1,  3. 
New  Trial,  4,  6. 
Paktnersuip,  3. 


JNDEX. 


(iiU 


8l  Parole. 

10.  To  establish  a  plea  of  want  of 
oousideratiou,  parole  evidence  is 
admissible  to  show  that  a  promis- 
sory note  was  given  for  a  patent 
right  to  make  fanning  mills,  and 
that  fanning  mills  made  after  the 
model  of  the  right  were  worthless. 
ScoU  V.  Siveet,        .        .        .224 

11.  When  a  note  is  so  written  that  it 
is  impossible  to  tell  whether  it  is 
dated  Jan.  or  Jun.,  parole  evidence 
may  be  admitted  to  determine  the 
true  date  ;  and  the  fact  should  be 
referred  to  the  jury  for  determina- 
tion.   Jefferson  Co.  v.  Savory,    288 

4.  Prima  Facie. 

See  Husband  and  Wrra,  6. 
Partnership,  2. 
Settleuent. 

5.  Presumptive. 

See  Courts,  6. 
Fraud,  3. 
Part:{£rshif,  8. 
Wills,  1. 


EXECUTION. 

,  OflBcere  of  court,  or  witnesses  to 
whom  fees  are  due,  have  not  the 
power  to  order  execution  on  a  judg- 
ment owned  by  another.  Hamp- 
ton, ex  parte,  .        .        .     137 

See  Attachment,  5. 
Levy. 
Sheriff's  Retubn,  1. 


FEES. 

1.  Clerks  of  the  district  court  are  en- 
titled to  fees  before  losing  control 
of  their  service.  Dickerson  v.  Shel- 
by,   460 

2.  Fees  for  making  out  a  transcript, 
may  be  required  before  the  case  ia 
docketed  in  the  supreme  court,   ib. 

See  Attorney. 

Execution. 


FELONY. 
See  Jurors.  9. 


FENCE, 

.  A  fence  built  upon  public  land, 
even  by  mistake,  passes  with  the 
freehold  to  the  purchaser  from  the 
government ;  and  if  such  fence  is 
detached  from  the  realty  by  a 
wrong-doer,  the  purchaser's  right 
to  it  is  not  divested.  Burlerson  v. 
Teeple,  .        .        .         .542 


FORCIBLE  ENTRY  AND 
DETAINER. 

1.  In  an  action  of  forcible  entry  and 
detainer,  an  appeal  bond  is  neces- 
sary as  a  condition  precedent  to  an 
appeal.     Cuddht'Ock  v.  Parks,   148 

2.  In  an  action  of  forcible  entry  and 
detainer,  proof  that  the  party  in 
possession  was  frightened  by  threats 
or  other  circumstances  to  yield  his 
possession  to  the  defendant,  is  suffi- 
cient to  show  that  the  entry  wiis 
forcible.     Earmw  v.  Baker,       201 

3.  Threats  that  induce  fear  of  forcible 
entry  and  ouster,  without  fear  of 
personal  violence,  are  sufficient  to 
establish  a  forcible  entry,      .       ib. 

See  Justice  of  Peace,  3. 
Unlawful  Detaimeb. 


FRAUD. 

.  Fraud  vitiates  the  most  important 
judicial  acts.    De  Louis  v.  Meek,  55 

.  As  a  general  rule,  courts  of  law  and 
of  chancery  have  concurrent  juris- 
diction in  matters  of  fraud.  Still 
in  many  cases  chancery  will  afiford 
relief  against  fraud,  which  cannot 
lie  remedied  at  law.  Arnold  v. 
Grimes,  ....       77 

.  A  t  law  fraud  must  be  proved  ;  in 
equity  it  may  be  presumed,  .       ib. 

.  A  patent  for  land  from  the  United 
States  cannot  generally  be  im- 
peached at  law  for  fraud,        .       ib. 

,  If  fraud  appears  upon  the  face  of 
a  patent,  it  is  rendered  void  at  law  ; 
but  when  fraud  or  other  delect 
arises  deliors  the  grant,  it  is  void- 
able only  by  suit  in  chancery,      ib. 


620 


INDEX. 


See  Equity,  1,  2,  3. 
Jurisdiction,  1. 
Pleading,  1,  2,  3,  4. 


G 

GARNISHMENT. 

1.  One  of  two  joint  obligators  not 
liable  in  a  proceeding  of  garnish- 
ment.     Wilson  V.  Albright,   .     125 

2.  Judgment  cannot  be  rendered 
against  a  garnishee  upon  his  lia- 
bility before  it  becomes  due,       ib. 

8.  Garnishee  under  no  greater  liabi- 
lity to  his  garnishor  than  he  would 
be  to  his  creditor,  .         .       ib. 

4.  A  garnishee  holding  a  note  for  col- 
lection is  not  liable  as  holder  of 
the  note,  nor  on  the  receipt  he  gave 
for  tbe  note,  without  a  j)revious 
demand  and  a  refusal  to  deliver  up 
the  note  and.  the  amount  collected 
on  the  note,  .  .         .       ib. 

5.  Judgment  cannot  be  rendered 
against  a  garnishee  unless  he  ac- 
knowledge an  indebtedness,  .       ib. 

6.  C  was  garnisheed  in  an  attach- 
ment suit  against  M,  and  in  his 
answer  it  ajipeared  tliat  he  had 
collected  funds  belonging  equally 
to  B  and  M  ;  that  both  of  them 
claimed  the  whole  amount,  but  as 
they  had  assigned  the  claim  to  him, 
and  he  believed  the  assignment 
vested  in  him  the  money, he  divided 
the  amount  equally  in  two  pack- 
ages, placing  each  by  itself ;  that 
he  had  paid  to  B  his  half,  who  at 
the  same  time  demanded  the  other 
half,  which  he  held  subject  to  the 
order  of  M ;  held  that  the  funds 
remaining  in  Cs  hands  were  sub- 
ject to  the  paj-ment  of  M's  debts. 
Harlan  v.  Monarty,      .         .     486 

GRAND  JURY. 
See  Indictment,  6,  6. 


H 

HALF-BREED  TRACT. 

1.  By  an  act  of  Congress,  approved 
June  30,  1834,  the  qualified  inter- 
est held  by  the  half-breeds  of  the 
Sac  and  Fox   Indians  to  the  half- 


breed  tract  in  Lee  county,  was  con- 
verted into  an  absolute  estate. 
Wriffhf  V.  Marsh,  .         .       94 

2.  Since  the  act  of  Congress  of  1834, 
the  half  breed  lands  in  Lee  county 
have  been  subject  to  the  laws  and 
courts  of  Iowa,  to  the  same  extent 
as  other  lands  owned  bj'  indivi- 
duals,   .....       ih. 

3.  The  conclusive  effect  of  the  judg- 
ment of  partition  of  the  half-breed 
lands,  as  established  by  Wright  v. 
Marsh,  Lee  d:  Delevan.  Barney  v. 
Chittenden,    .         .         .         .165 

4.  A  majority  of  the  trustees  under 
the  articles  of  association,  of  the 
New  York  Company,  have  power 
to  convey  the  title  of  said  company 
to  lands  in  the  "  half-breed  tract," 
and  the  conveyance  may  be  made 
by  themselves,  or  by  their  attorney, 

ib. 


HUSBAND  AND  WIFE. 

1.  A  father  cannot  recover  damages 
against  a  person  for  procuring  the 
marriage  of  his  daughter,  who  in 
good  faith  and  without  force  or  im- 
position, entered  into  a  marriage 
contract  between  twelve  and  four- 
teen years  of  age.  GoodvAn  v. 
Thompson,      ....     329 

2.  The  statvite  which  provides  that 
male  persons  of  the  age  of  eighteen 
years,  and  female  persons  of  the 
age  of  fourteen  years,  maybe  joined 
in  marriage,  is  merely  cumulative, 
and  does  not  abrogate  the  common 
law  rule,  which  fixes  the  age  of 
marriage  consent  for  males  at  four- 
teen and  for  females  at  twelve 
years  of  age,  .         .         .       ib. 

3.  The  right  of  a  husband  over  his 
wife  is  paramount  to  that  of  her 
parent,  .  .  ,  .        ih. 

4.  Where  the  husband  and  wife 
jointly  contract  for  the  erection  of 
a  building  on  the  land  of  the  wife, 
a  mechanics'  lien  under  the  statute 
may  be  enforced  against  the  pro- 
perty.  Greenough  v.  Wigginton.  435 

5.  Law  and  equity  act  in  concert,  sa 
far  as  general  personal  engage- 
ments of  man  and  woman  are  con- 
cerned, ....       ib. 

6.  Generally  a  debt  contracted  by  a 
woman  during  coverture  is  prima 
facie  evidence  to  charge  her  sepa- 
rate estate.  .         .         .       ib. 


INDEX. 


GZl 


INDICTMENT. 

1.  An  indictment  is  good  which  sub- 
Btautially  follows  the  language  of 
the  statute  defining  the  offence. 
Buckley  v.  State,  .         .       162 

2.  Not  necessary  that  the  indictment 
should  charge  the  offence  in  the 
very  language  of  the  statute,  if 
words  of  the  same  import  and 
equally  comprehensive  are  used,  ih. 

8.  The  name  of  the  person  to  whom 
counterfeit  money  was  passed 
should  be  set  forth  with  certainty 
in  the  indictment,  unless  the  name 
is  unknown,  and  if  so,  that  fact 
should  be  stated,  .         .         .       ih. 

4.  "  State  of  Iowa  "  and  "  The  State 
of  Iowa  "  are  substantially  synony- 
mous terms.     Harriman  v.  State, 
271 

6.  Where  an  indictment  appears  to 
have  been  exhibited  in  open  court, 
by  the  grand  jur\-,  aud  is  indorsed 
"  a  true  bill  "  over  the  signature  of 
the  foreman,  it  is  conclusive  evi- 
dence that  it  was  duly  found  by  a 
legal  grand  jur}',  .         .      ih. 

6.  The  names  of  the  witnesses  on 
whose  evidence  an  indictment  is 
fo\ind,  should  be  indorsed  on  every 
true  bill  returned  by  the  grand 
jury  ;  but  they  need  not  be  made 
a  part  of  the  record,       .         .       ih. 

7.  An  indictment  is  good  which 
clearly  states  all  the  facts  necessary 
to  constitute  the  crime  of  murder 
under  the  statute.     Nash  v.  State, 

2S6 

8.  An  indictment  need  only  state 
such  facts  as  are  required  to  be 
proved,  ....       ih. 

9.  An  indictment  upon  a  statute 
should  state,  substantially,  if  not  in 
the  very  language  of  the  law,  all 
the  circutnstaiices  which  constitute 
the  definition  of  the  offence  in  the 
act.     Statf  V.  Chamhers,         .     302 

10.  An  indictinent  is  good  which  fol- 
lows the  words  of  the  statute  on 
which  it  is  founded,       .         .       ih. 


INJUNCTION. 

1.   The  supreme  court  is  not  author- 
ized to  giant  an  injunction  upon 
•     original  petition  ;   but   each  judge 


of  that  court  in  his  separate  capa- 
city is  empowered  to  grant  injunc- 
tions.    Meed  V.  Murphy,        .     568 


INSTRUCTION, 
^ee  Practice,  28,  34. 

INTEREST. 

1.  Only  that  portion  of  a  contract  ia 
void  which  promises  more  interest 
than  is  authorized  by  the  interest 
law  of  1839.  Richards  v.  Marsh- 
man,      217 

2.  On  a  note  made  under  that  law  to 
draw  33  per  cent,  interest,  20  per 
cent,  interest  can  be  enforced,     ib. 


JUDGE. 

1.  A  judge  cannot  act  as  attorney  in 
a  case  jjeudiug  before  him.  Wright 
V.  Boon,         ....     458 

2.  When  a  case  comes  before  a  judge 
in  which  he  has  been  engaged  as 
attornej',  he  should  order  a  change 
of  venue,        .         .         .         .      ih. 

3.  A  judge  cannot  delegate  his  power 
to  another,  nor  can  a  person  l)o  au- 
thorized to  act  as  judge  by  agree- 
ment of  the  parties  to  a  suit,        ib. 

See  Courts. 


JUDGMENTS. 

1.  Void  judgments  are  never  binding, 
but  judgments  merely  voidable 
may  bo  enforced  until  reversed  by 
a  superior  authority.  Reid  v. 
Wriyht,  ....       15 

2.  Judgments  from  courts  of  general 
jurisdictioti  cannot  be  collaterally  - 
impeached,  unless  absolutely  void 
upon  their  face,      .         .         .       ib. 

3.  Where  the  record  of  a  final  judg- 
ment shows  that  the  subject  matter 
and  the  parties  were  properly  before 
the  court,  the  judgment  becomes 
conclusive,  and  cannot  lie  coUatcr- 
allv  impeached.  Wright  v.  Man^h. 
et  III.,     .         .         .      \         .       yj 

4.  No  person  V>ut  the  party  in  whose 


(522 


INDEX. 


favor  a  judgment  is  rendered,  his 
agent  or  attorney  of  record,  can  con- 
trol or  order  process  to  enforce  the 
judgment.  Hampton,  ex  parte,   137 

5.  The  judgment  of  a  court  of  compe- 
tent and  general  jurisdiction  cannot 
be  collaterally  assailed.  Kerr  v. 
Lcif/hton,       .         .         .         .196 

6.  N\'  here  a  power  of  attorney  author- 
izes a  judgment  to  be  confessed  for 
"an  amount  that  may  be  found 
due  "  on  the  note  therein  described, 
and  is  in  sufficient  form,  in  all 
other  particulars,  to  give  the  court 
jurisdiction  over  the  subject  matter 
anil  the  parties,  it  gives  sufficient 
authority  to  confess  a  judgment 
which  cannot  be  collaterally  im- 
peached for  mere  irregularity.  Pat- 
terson v .  State  of  Indiana,      .     492 

7.  Tht^  judgment  of  a  court  having 
jurisdiction  of  the  parties,  and  the 
feubject  matter,  is  conclusive  so  long 
as  it  remains  unreversed,         .       ib. 

8.  Where  a  judgment  has  been  assign- 
ed, it  is  not  necessary  to  make  the 
assignee  a  party  by  scire  facias,  to 
enable  him  to  sue  out  an  execution 
in  the  name  of  the  party  who  re- 
covered judgment.  Corriell  v.  Doo- 
little 385 

See  Erroe,  2,  6. 
Practice,  35,  42. 
Statute,  3. 


JURISDICTION. 

1.  Courts  of  law  and  of  chancery  have 
concurrent  jurisdiction  in  matters 
of  fraud.     De  Louis  v.  Meek,        55 

2.  The  Iowa  territorial  district  courts 
were  not  of  inferior  jurisdiction. 
They  were  invested  with  the  same 
jurisdiction  of  a  federal  character 
as  the  circuit  and  district  courts  of 
the  United  States,  and  also  the 
general  common  law  jurisdiction 
usually  imparted  to  state  courts  of 
record.     Wright  v.  Marsh,     .       94 

8.  If  the  district  court  in  partition 
proceedings  was  only  authorized 
to  act  under  the  special  authority 
conferred  by  statute,  the  jurisdic- 
tion would  be  quoad  hoc  limited 
and  inferior,  .  .         .      ib.. 

4.  Courts  of  equity  may  exercise  gen- 
eral concurrent  jurisdiction  with 
courts  of  law  in  all  partition  cases 
at  common  law,      .         .         .      ib. 


'  5.  The  territorial  district  courts,  in 
dependent  of  the  partition  act,  had 
general  jurisdiction  of  partition 
proceedings  both  at  law  and  in 
equity,  ....      ib. 

6.  The  jurisdiction  of  a  court  can  be 
taken  away  only  by  express  words, 

ib. 

7.  In  a  court  of  general  jurisdiction, 
authority  will  be  presumed  until 
tlie  contrary  clearly  appears,     .    ib. 

8.  Where,  on  an  appeal  to  the  district 
court  from  the  judgment  of  a  justice 
of  the  peace,  it  appeared  that  no 
judgment  was  entered  by  the  jus- 
tice on  the  verdict  of  the  jury :  held 
that  the  district  court  had  no  juris- 
diction of  the  cause ;  and  that  even 
the  appearance  of  the  parties  in  the 
supposed  appeal  in  the  district 
court  could  not  coufer  jurisdiction 
over  the  invalid  proceedings  of  the 
justice.     Kimble  v.  Riggin,    .     245 

9.  Appearance  will  not  coufer  juris- 
diction over  parties  not  residing 
within  the  jurisdiction  of  the  coiu't, 
nor  subject  to  its  process.  Chapj- 
man  v.  Morgan,     .         .         .374 

10.  Consent  of  a  party  cannot  confer 
a  greater  authority  upon  a  court 
than  the  law  affords,       .  .      ib. 

11.  The  district  courts  have  jurisdic- 
tion over  all  civil  and  criminal 
matter  arising  in  their  respective 
districts,  .         .         .  .      ib. 

12.  Tlie  district  courts  have  concur- 
rent jurisdiction  with  justices  of  tha 
peace  iu  all  sums  under  $100.  iVe^- 
so»  V.  Gray,  .         .         .     397 

13.  The  district  court  has  concurrent 
jurisdiction  with  justices  of  the 
peace  in  actions  of  replevin,  when 
the  property  claimed  is  worth  less 
than  $50,  so  in  all  other  actions. 
Hutton  V.  Drebilbis,       ,        .     693 

See  Courts. 

Partition,  3,  5. 


JURORS. 

1.  Affidavits  of  jurors  not  admissible 
to  explain  their  verdict.  Lloyd  v. 
McClure,       .         .         .        .139 

2.  It  is  the  exclusive  province  of  a 
jury  to  deciile  the  facts  in  a  case. 
Bradley  v.  Kennedy,       .         .     231 

3.  If  a  case  is  not  submitted  to  the 
jury  impanneled  at  a  regular  term 
to  try  the  case,  a  second  jury  may 


INDEX, 


623 


be  impanneled  for  the  trial  at  a 
fiihseqiient  term.  Harriman  v. 
The  .State 271 

4.  Where  the  oath  required  by  statute 
is  in  substance  administered  to  a 
jury,  it  is  sufficient,         .         .      ib. 

5.  Where  the  jury  are  "sworn  the 
truth  to  speak  upon  the  issue  joined 
between  the  jiarties."  it  is  not  suffi- 
cient in  a  trial  for  murder,     .       ib. 

6.  In  examining  a  juror  as  to  his 
qualification,  lie  stated,  that  "  he 
had  formed  and  expressed  an  opin- 
ion from  the  rumour  or  report  he 
liad  heard  in  his  neighborhood  soon 
after  the  murder  was  committed; 
tiiat  he  iiad  no  acquaintance  with 
the  defendant,  no  ill-will  ov  preju- 
dice against  him  ;  that  he  had  no 
pei'sonal  knowledge  of  the  circum- 
stances of  the  case ;  that  he  had 
never  heard  any  of  the  testimony, 
or  conversed  with  any  of  the  wit- 
nesses; that  his  opinion  was  condi- 
tional ;  that  if  what  he  had  heard 
was  true,  he  had  formed  an  opinion, 
and  if  not  true,  he  had  formed 
none  :"  held  that  such  juror  is  in- 
competent. Trimble  V.  The  State,  404 

7.  In  a  criminal  case  the  jurors  had 
been  impanneled  and  sworn,  and 
the  case  partly  submitted  to  them, 
when  the  court  adjourned  for  din- 
ner ;  during  the  adjournment,  one 
of  the  jurors  separated  from  his 
fellows,  and  when  the  court  met 
this  juror  was  dismissed  and  another 
person  substituted  :  held  that  this 
substitution  was  erroneous.  Grdble 
V.  The  State,  .         .         ,559 

8.  The  statute  prohibitsthe  separation 
of  jurors  in  trials  for  felonies,      ib. 

See  Indictment?,  5,  6. 
Partnership,  1, 


JUSTICE  OF  PEACE. 

1.  A  justice  of  the  peace  may  deter- 
mine what  townships  are  within 
his  jurisdiction  ex  officio.  Wright 
V.  Phillips,    .         .         .         .191 

2.  A  substantial  compliance  with  the 
statute,  conferring  and  regulating 
the  powers  of  justices  of  the  peace, 
is  all  that  should  be  required,      ib. 

S.  In  an  action  of  forcible  entry  and 
detainer,  the  jurisdiction  of  a  justice 
is  co-extensive  with  the  county,  ib. 

4.  The  official  return  of  a  justice  can- 


not be  impeached  by  the  mere  tra- 
verse plea  of  a  part}-  or  bis  attorney, 
where  the  record  shows  no  evidence 
to  support  it.     Writjht  \.  Jio.ss,    266 

5.  A  verbal  statement  of  plaintiff's 
demand  before  a  justice,  entered 
upon  his  docket  and  indorsed  upon 
the  writ,  is  all  that  is  required  by 
the  statute  of  1844.  Taylor  v. 
Barber,         .         .         .         .350 

6.  Mere  irregularity  and  deficiency 
of  form  in  proceedings  beiore  jus- 
tices should  be  regarded  with  liber- 
ality,    .         .         .         .         .      ib. 

7.  An  appeal  is  authorized  from  the 
judgment  of  a  justice,  and  not  from 
the  verdict  of  a  jury.  Brown  y. 
Scott, 454 

8.  The  intention  of  a  justice  to  render 
a  judgment  without  doing  so,  is 
not  a  judgment,     .         .         .      ib. 

9.  The  certificate  of  an  ex-justice  of 
the  peace,  in  relation  to  his  pro- 
ceedings while  in  office,  is  not  en- 
titled to  legal  consideration,  .      ib. 

10.  In  a  suit  commenced  before  a  jus- 
tice of  the  peace,  a  misnomer  may 
be  taken  advantage  of  by  motion, 
as  well  as  by  plea  in  abatement. 
Hall  V.  Bennett,     .         .         .     466 

11.  In  a  case  tried  in  the  district 
court  on  appeal  from  a  justice,  it  is 
error  to  receive  notes  in  evidence 
that  were  not  marked  as  filed  by 
the  justice,  nor  in  any  way  identi- 
fied by  his  transcript.  Graft  v. 
Giltz, 670 

See  Attachment,  3,  4. 
Jurisdiction,  8,  12,  13. 
Replevin,  2. 


LAND. 

1,  Two  contiguous  quarter  sections 
of  land  may  be  regarded  as  one 
entire  tract  or  possession.  Kerr  v. 
Leighton,        ....     197 

2.  A  contract  by  which  E  agrees  to 
purchase  for  M  at  the  United  States 
land  office  a  portion  of  public  land 
upon  which  M  has  made  valuable 
improvements,  is  not  repugnant  to 
the  act  of  congress  passed  in  1830, 
to  prevent  fraudulent  practices  at 
the  public  sales  of  the  lands  of  the 
United  States.    Ellis  v.  Mosier,  247 


024 


INDEX. 


3.  Where  an  agreement  is  not  calcu- 
lated to  prejudice  the  price  and 
sale  of  the  ptiblic  lands,  it  is  not 
affected  by  the  law  of  1830,     .     ib. 

4.  Agreements  in  relation  to  improve- 
ments and  claims  on  the  public 
lands  are  recognized  bj'^  the  laws, 
courts  and  customs  of  Iowa,    .     ib. 

See  Deed,  1. 
Description. 
Fence. 
Half-Bkeed  Tbaot. 


LARCENY. 

1.  Under  the  statute,  the  word  "  lar- 
ceny" designates  giand  larceny,  as 
contradistinguished  from  petit  lar- 
ceny.    The  State  v.  Chambers,    308 

2.  The  section  of  the  statute  in  rela- 
tion to  petit  larceny  regulates  that 
offence  without  reference  to  the 
preceding  sections,  .         .      ih. 

8.  The  word  "steal"  has  a  uniform 
signification,  and  means  felonious 
taking  and  carrying  away  the  per- 
sonal goods  of  another,  .      ib. 


LEGISLATURE. 

1.  The  legislature  of  Wisconsin  terri- 
tory could  not  curtail  rights  con- 
ferred, nor  confer  rights  withheld, 
by  the  ordinance  of  1787.  Reid  v. 
Wright,         .         .        .         .16 

See  Divorce. 
Statute. 


LEVY. 

1.  After  levy  by  execution  on  goods 
and  chattels  sufficient  to  satisfy 
the  judgment,  the  defendant  in  the 
execution  is  divested  of  his  right  to 
the  property,  and  the  officer  mak- 
ing the  levy  becomes  liable  to  the 
plaintiff  for  the  debt,  if  he  fail  to 
perform  his  duty  according  to  the 
requirements  of  law,  or  be  released 
by  the  plaintiff.  Lucas  v.  Cassu- 
day, 208 

2.  After  a  return  by  the  officer,  that 
property  sufficient  to  satisfy  the 
judgment  has  been  levied  on,  the 
defendant  in  the  execution  is  prima 
facie  discharged  from  the  debt,    ih. 


LIBEL. 
See  Evidence,  2,  3. 


LIEN. 

.  A  judgment  lien  will  hold  against 
a  prior  unrecorded  deed,  without 
actual  notice.  Hopping  v.  Bur- 
nam, 39 

See  Attachment,  2. 
Attorney,  3. 
Weits,  2. 


LIMITATION  OF  ACTIONS. 

1.  The  statute  of  limitations  approved 
February  15, 1843,  cannot  be  plead- 
ed in  bar  of  an  action  of  debt,  cove- 
nant, &c.,  within  six  years  after  the 
act  commenced  running.  Forsyth 
V.  Ripley,      .         .         .         .181 

2.  The  decision  in  Norris  v.  Slaughter, 
1  G.  Greene,  338,  approved,  .       ib. 

8.  The  limitation  act  of  1839  having 
been  unconditionally  repealed  by 
the  act  of  1843,  without  a  saving 
clause,  the  time  which  an  indebted- 
ness had  run  under  the  old  act 
cannot  be  included  as  limitation 
time  under  the  new  act,  .      ib. 

4.  As  tlie  limitation  act  of  1839  had 
not  been  in  force  the  requisite  pe- 
riod of  six  j^ears,  nor  connected 
with  the  Micliigan  act  of  1820,  it 
cannot  be  pleaded  as  a  bar  to  an 
action  of  debt,        .         .         .      ib. 

5.  A  repealed  statute  of  limitations, 
under  which  an  action  had  been 
barred,  should  be  specially  pleaded, 

ib. 

6.  Statute  of  limitations  approved 
February  15, 1843,  cannot  be  plead- 
ed in  bar  to  any  action  of  debt, 
assumjisit,  &c.,  commenced  before 
July  4,  1849.  Hinch  v.  Weather- 
ford,      244 

7.  The  statute  of  limitations  approved 
February  15,  1843,  cannot  be  plead- 
ed in  bar  to  an  action  of  debt 
within  six  years  after  the  act  took 
effect.      Gordon  v.  Mounts,     .     243 

8.  The  words  beyond  sea,  in  the  Mich- 
igan statute  of  limitations,  means 
beyond  the  limits  of  the  United 
States.     Darling  v.  Meacham,    602 

See  Pleading,  22. 


INDEX. 


625 


M 

MANDAMUS. 

1.  In  an  application  to  the  supreme 
court  for  maiidamns  on  the  district 
judge,  affidavits  were  filed  to  show 
that  certain  facts  were  proved  to 
the  court  below  which  were  not 
certified  in  the  bill  of  exceptions  ; 
to  these,  cou!ii,>jr  affidavits  were 
filed :  held  that  in  a  matter  thus 
susceptible  of  proof,  and  within  the 
knowledire  and  sound  discretion  of 
the  court  below,  this  court  will  n<it 
interfere  by  mandamus.  Jamison 
V.  Reid,  .        .        .         .394 

MARRIAGE. 
See  Husband  and  Wife,  1,  2. 

MECHANICS'  LIEN. 

1.  The  statute  in  relation  to  me- 
chanics' liens  should  be  strictly 
pursued.  Greene  dr  Brothers  v. 
Ely, 508 

2.  A  petition  describing  the  property 
and  stating  the  nature  of  the  in- 
debtedness is  not  sufficient ;  it 
should  be  accompanied  with  a  bill 
of  particulars  of  the  materials  ol" 
labor  furnished,     .         .         .       ib. 

8.  The  acceptance  of  a  note  is  not  a 
relinquishment  of  a  mechanics'  lien, 
unless  it  appears  to  have  been  in- 
tended as  a  waiver  of  the  lien,      ib. 

4.  A  petition  for  a  mechanics'  lien  set 
forth  that  payment  was  to  be  made 
as  the  work  progressed,  and  at  the 
completion,  if  any  balance  was  due 
the  plaintiff,  it  should  be  paid  as 
might  then  be  agreed  :  held  that 
this  was  a  sufficient  statement  of 
the  time  of  payment  by  virtue  of 
the  contract.     Mix  v.  Ely,     .     513 

6.  A  right  to  a  mechanics'  lien  is  not 
affected  by  accepting  a  note,    .     ib. 

6.  Where  a  note  became  due  May  1, 
1848,  and  the  summons  in  a  pro- 
ceeding for  a  mechanics'  lien  was 
served  March  27,  1849,  it  was  held 
that  the  action  was  commenced 
within  the  time  required  by  statute, 
i.e.,  within  one  year  from  the  timt 
payment  should  have  been  made,  ib. 

7.  In  a  proceeding  for  a  mechanics' 
lien,   th.0  administrator  of  defend- 


ant's estate  may  properly  be  made 
a  party,  and  if  plaintiff  takes  a  judg- 
ment without  making  the  heirs  a 
party,  he  does  it  at  his  peril,  ib. 
.  In  a  proceeding  for  a  mechanics' 
lien,  rules  both  of  law  and  of  equity 
are  authorized.  Greenough  v.  Wig- 
gington,         ....     435 


MISNOMER. 
See  JusTiCK  op  Peace,  10. 


MORTGAGE. 

,  Where  in  a  mortgage  a  lot  was 
by  mistake  designated  as  18  in- 
stead of  8,  and  was  correctly  de- 
scribed in  a  subsequent  mortgage, 
which  was  executed  subject  to  the 
first  with  notice  of  the  mistake  : 
held  that  the  first  mortgage  should 
attach  to  lot  8,  and  be  regarded 
as  senior  to  the  subsequent  mort- 
gage.    Warburton  v.  Lauman,    420 


MOTIONS. 
See  Practice,  44,  45. 

MURDER. 
See  Indictment,  7. 


N 

NEW  TRIALfi 

Where  a  verdict  has  been  retvirned 
on  matters  of  account,  a  new  trial 
should  not  be  granted,  unless  it  is 
apparent  that  manifest  injustice  has 
been  done.     Lloyd  w .  McClure,  139 

,  A  new  trial  should  be  granted  if 
the  verdict  is  contrary  to  law  and 
the  instructions  of  the  court,       ib. 

,  Unless  the  contrary  appears,  it  will 
be  presumed  that  the  court  exer- 
cised a  sound  discretion  in  over- 
ruling a  motion  for  a  new  trial,    ib. 

.  A  new  trial  should  not  be  granted 
on  t-'^e  ground  of  newly  discovered 
evidence,  unless  it  is  of  a  character 
calculated  to  produce  a  substantial 
change  in  the  verdict ;  nor  when 
such    eviilence,  by   ordinary    dit 


626 


INDEX. 


gence,  might  have  been  produced 
on  the  trial.  Millard  v.  Singer,  144 
6-  A  motion  for  a  new  trial  is  ad- 
dressed to  the  sound  discretion  of 
the  court,  and  should  be  refused 
unless  a  strong  meritorious  case  is 
shown,  .  .  .  .       ib. 

6.  Where  a  new  trial  is  sought  on  the 
ground  of  newly  discovered  evi- 
dence, the  best  proof  should  be  ad- 
duced to  show  that  such  evidence 
has  been  discovered,  where  it  is, 
that  it  can  be  had  at  the  proper 
time,  that  it  is  material  and  not 
merely  cumulative,  and  that  a 
failure  to  procure  it  on  the  trial 
was  not  occasioned  by  negligence. 
Reeves  v.  Royal,         .       .       .     451 

7.  Where  the  record  shows  that  the 
district  court  granted  a  new  trial, 
on  the  ground  that  the  instructions 
were  confused  and  defective,  this 
court  will  not  disturb  the  ordei-,    ib. 

8.  Where  the  bill  of  exceptions  shows 
that  the  court  below  erred  in  grant- 
ing a  new  trial  upon  a  legal  proposi- 
tion, the  judgment  will  be  reversed. 
Shaw  v.  Sweeney,  .        .        •    687 


NONSUIT. 

See  Attachment,  1,  2. 
Practice,  46,  51. 


NOTICE. 

1.  When  a  nonsuit  or  default  is  set 
aside,  notice  must  be  served  on  the 
party  at  least  six  days  before  the 
new  trial.  But  this  notice  may  be 
waived  by  general  appearance  of  the 
party.     Hughes  v.  Miller,       .         9 

2.  A  party  cannot  object  to  defective 
notice  after  he  consents  to  have  a 
jury  called,    ....       ib. 

3.  Where  actual  notice  is  required  by 
statute,  evidence  of  constructive 
or  implied  notice  is  not  sufficient. 
Hopping  V.  Burnam,      .  .       39 

4.  Actual  notice  can  only  be  com- 
municated by  express  information 
to,  or  personal  service  upon  the 
party  interested,     .         .         .       ib. 

5.  Objection  to  the  sufficiency  of  pub- 
lication of  notice  cannot  be  taken 
advantage  of  collaterally.  Wright 
V.  Mamh,       ....       9!") 

6.  Not  necessary  to  incorporate  a  cojiy 
of   notice  or  orouf    of    uublication 


in  a  record  from  a  court  of  general 
jurisdiction  ;  and  if  not  so  incor- 
porated, they  will  be  presumed  suf- 
ficient, ....        i.b. 

7.  In  proceedings  in  chancery  against 
non-residents,  a  brief  statement  of 
the  object  and  prayer  of  the  peti- 
tion must  be  published  for  six  weeks 
successively  in  some  newsnaper 
printed  in  the  county  where  the 
petition  or  bill  is  filed,  &;c.  Marsh  all 
V.  Marshall,  .         .         .     241 

8.  The  publication  is,  in  contempla- 
tion of  law,  a  service  of  process  upon 
the  defendants,  and  unless  made  as 
required  by  statute,  no  service  is 
obtained,  and  the  proceedings  of 
the  court  are  coram  non  judice,  and 
void,      .         .         .         .         .       ib. 

9.  Notice  to  an  acknowledged  agent 
is  notice  to  his  principal.  War- 
barton  V.  Lauman,         .         .     420 

10.  It  is  sufficient  notice  of  special 
matter  in  defence  of  an  action  under 
the  statute,  to  state  "  that  the  note 
had  been  given  for  a  claim  of  public 
land,  belonging  to  the  government 
of  the  United  States,  on  which  there 
was  no  improvement ;  or  that  there 
was  no  consideration  for  the  note  ; 
or  that  the  consideration  had  wholly 
failed."  The  notice  should  specially 
point  out  the  particular  matter  re- 
lied upon  in  defence  of  the  action. 
Chambers  V.  Games,        .        .     320 


PARENT  AND  CHILD. 

See  Bastardy. 
Evidence,  8. 
Husband  &  Wife,  1, 


PARTITION. 

1.  The  provisions  of  the  partition  act 
can  only  appl^r  to  proceedings  with- 
in its  legitimate  power,  and  not  to- 
proceedings  mala  fide.  De  Louis  v. 
3feek, 55 

2.  Piinciples  of  law  and  equity  are 
united  and  applied  by  the  partition 
act  of  Iowa.      Wright  v.  Marsh,    94 

;;,  In  partition  proceedings  the  juris- 
diction of  the  district  court  is  three- 
fold :  1.  Cumulative  and  special  as- 
created  by  statute.  2.  Having  full 
chancery  attributes,  except  as  other- 


INDEX. 


g::' 


wise  provided  by  the  act.  3.  Gen- 
eral common  law  authority,  so  far  as 
it  could  be  exercised  with  tbe  two 
preceding  powers,  .  .       ib. 

4.  The  petition  for  partition  maj'  be 
verified  by  the  affidavit  of  an  at- 
torney, ....       ib. 

5.  Where  the  petition  contained  all 
the  allegations  necessary  to  confer 
jvn-isdiction,  but  omits  to  describe 
the  interest  of  unknown  owners, 
the  defect  cannot  be  collaterally 
assailed,  ....       ib. 

6.  A  slight  deviation  by  commission- 
ers, where  it  is  necessary  to  an 
equitable  partition  of  the  property, 
is  not  fatal  to  the  proceedings,     ib. 

7.  Tiie  final  judgment  of  partition 
may  properly  correct  any  erroneous 
computation  or  inaccuracy  in  the 
report  of  the  commissioners,         ib. 

8.  A  partition  of  real  property  under 
the  statute  is  made  complete  by  the 
judgment  without  conveyances,   ib. 

See  Equity,  2. 

Jurisdiction,  3,  4,  5. 
Pleading,  1,  2. 


PARTNERSHIP. 

1.  The  existence  of  a  partnership  is  a 
question  of  fact  to  be  determined 
by  the  jurj',  who  are  alone  author- 
ized to  decide  upon  the  weight  and 
sufficiency  of  the  testimony  adduced 
to  establish  the  fact.  Mc.Mullin  v. 
Mackenzie,     .         .         .         .363 

2.  The  fact  that  the  defendants  con- 
ducted a  smelting  business  together 
is  prima  facie  evidence  of  a  co- 
partnership, ....       ib. 

3.  Where  a  note  is  given  in  the  name 
of  a  firm,  it  is  presumptive  evidence 
that  it  was  given  for  a  consideration 
furnished  to  the  co-partnership,  and 
the  oniis  prabandi  lies  upon  the 
party  seeking  to  avoid  the  note, 
to  show  that  it  was  given  for  some 
other  purpose.       .  .  .       ib. 

4.  Where  A  contracts  with  B  for  a 
share  of  the  profits,  as  such,  in  any 
business  transaction,  he  would  be 
considered  a  partner  as  to  third 
persons  ;  but  where  he  was  to  re- 
ceive a  share  of  the  profits  as  com- 
pensation for  services,  as  between 
themselves,  they  woidd  not  be  con- 
sidered partners.  Price  v.  Ale.r- 
ander,    .....     427 


5.  An  instrument  under  seal,  exe- 
cuted by  one  partner  and  assented 
to  by  the  other,  will  bind  both  as 
a  firm,  .         .  .  .         .       ib. 

6.  The  rule  that  one  partner  cannot 
bind  his  co-partner  by  sealed  in- 
struaieuts,  does  not  prevail,  if  the 
instrmiient  would  be  equally  valid 
without  seal  and  within  the  scope 
of  the  partnership  business,  .        lb. 

7.  Where  C  had  collected  funds  for  B 
and  M,  and  paid  to  B  his  portion, 
and  where  no  creditors  of  B  and  M 
as  partners  claimed  the  funds  re- 
maining in  the  hands  of  C,  it  was 
held  that  they  were  liable  for  the 
individual  debts  of  M.  Robinxon 
v.  Moriarty,  ....     497 

8.  Where  a  person  contracted  to  re- 
ceive a  share  of  the  profits  in  a 
business  as  a  compensation  for  ser- 
vices and  rent  of  a  building,  with 
no  other  privilege,  and  none  of  the 
responsibilities  of  a  partner,  it  was 
held  that  he  was  not  a  partner. 
Reed  v.  Murphy,    .        .         .574 


PATENTS. 

1.  If  a  patent  is  void  upon  its  face, 
or  was  issued  without  authority,  or 
if  the  state  had  no  title,  it  may  be 
collaterally  impeached  at  law  ;  but 
for  the  determination  of  all  other 
defects,  resort  should  be  had  to 
a  court  of  equity.  Arnold  v. 
Grimes,  .        .  .77 


See  Fraud,  4,  5. 


PAYMENT. 

1.  At  common  law,  payment  from 
lapse  of  time  will  not  be  presumed, 
unless  the  debt  has  run  twenty 
years,  and  the  debtor  pleads  or 
alleges  payment.  Foriyth  v.  Rip- 
ley  181 

See  Accord  and  Satisfaction. 

Delivery. 
Release. 


PLEADING. 

I. — In  Equity. 
1.  A  bill  to  vacate  a  judgment  of  par- 


628 


INDEX 


tition  for  fraud  may  lie  in  the  na- 
ture of  a  bill  of  review,  and  may 
be  demurred  to  for  want  of  equity. 
Dt  Louis  V.  Mtck,  .         .       55 

2.  An  allegation  of  fraud  in  a  l>ill  to 
set  aside  a  partition  is  sufficiently 
sj;ecific  where  it  charges  that  the 
attorney  for  plaintiffs  in  the  parti- 
tion suit  entered  the  appearance  of 
complainant  without  his  know- 
ledge, consent  ur  authority,  and 
thereupon  admitted  a  large  amount 
of  spurious,  fiaudulent  and  unjust 
claims  to  others,  which  proportion- 
ately diminished  his  share  in  the 
property,       ....        ib. 

S.  Where  a  bill  charges  actual  fraud 
on  the  ground  of  deception,  artifice 
and  circumvention,  in  tei-ms  judi- 
cially intelligible,  it  is  sufficient,    ib. 

4.  A  general  allegation  of  fraud  in  a 
bill  is  sufficient,  if  so  certainly  and 
distinctly  stated  as  to  make  the  sub- 
ject matter  of  it  clear,  .         .        ib. 

5.  If  it  appears  by  a  bill  in  equity 
that  complainants  had  a  plain  and 
adequate  remedy  at  law,  it  is  good 
ground  for  demurrer.  Preston  v. 
Daniels,         ....     536 

II. — At  Law. 
1.  Declaration. 

6.  In  an  action  of  debt  on  a  replevin 
bond,  it  is  sufficient  averment  of 
non-payment  where  the  declaration 
states,  "that  no  part  of  said  judg- 
ment and  costs  have  been  paid,  and 
that  the  whole  amount  remains  due 
and  owing."  Cameron  v.  Boyle,  154 

7.  If  the  important  averments  of  a 
declaration  are  made  with  a  suffi- 
cient regard  to  the  rules  of  pleading 
to  put  the  defendant  on  his  defence, 
they  are  sufficiently  good,     .        ib. 

8.  Where  the  county  and  state  are 
named  in  the  margin  of  a  declara- 
tion, and  the  county  is  referred  to 
in  its  body,  as  ''  Monroe  c'ty,"  held 
that  the  venue  was  sufficiently 
stated.     Sicks  v.  Walker,       .     440 

9.  In  an  action  of  slander,  where 
general  damages  only  such  as  the 
law  implies  from  words  actionable 
per  se  are  claimed,  the  declaration 
need  not  specify  damages,      .       ib. 

10.  Where  the  breaches  in  any  court 
in  a  declaration  in  covenant  are 
well  assigned,  a  general  demurrer 
should  not  be  sustained.  Brown  v. 
Tomlinson,     ....     525 


11.  While  unmeaning  forms  should 
not  be  enforced,  clearness  and  cer- 
tainty should  be  required  in  plead- 
ings,     .         .         .         .  .       ib 

12.  A  bond  or  note  may  be  sued,  in 
the  manner  provided  by  the  prac- 
tice act,  without  a  declaration. — 
Rev.  Stat.,  476,  §  43.  Jacobson  v. 
Manning,       ....     585 

See  Action  of  Right,  5. 

Agreement,  8. 

2.  Demurrer. 

13.  General  demurrer  can  only  pre- 
vail against  substantial  defects. 
Under  such  a  demurrer  no  advan- 
tage can  be  taken  of  merely  formal 
defects.     Coffin  v.  Knott,        .     582 

14.  In  an  action  of  replevin,  the  de- 
fendants pleaded  in  substance 
that  the  plaintiff  had  previously 
brought  an  action  of  trespass,  in 
which  he  declaied  for  the  same 
property,  against  the  same  parties, 
in  which  they  pleaded  a  release 
executed  by  the  plaintiff  to  one  of 
the  defendants ;  that  to  the  plea 
of  release  there  was  a  demurrer, 
which  was  overruled,  and  judgment 
rendered  against  the  defendants  : 
held  that  such  a  plea  is  good  in 
substance,  and  that  a  general  de- 
murrer to  it  should  be  overruled, 

ib. 

15.  A  former  action  of  trespass  for 
taking  goods  may  be  pleaded  in 
bar  to  an  action  of  replevin  for 
the  same  goods  between  the  snme 
parties ;  and  it  makes  no  differ- 
ence whether  the  judgment  in  the 
trespass  suit  was  rendered  upon  a 
demurrer  or  a  verdict,  .         .       ib. 

See  Admission. 

3.  Picas. 

15a.  In  an  action  of  debt  on  a  note 
under  seal,  the  plea  of  non  est  fac- 
tum is  admissible  ;  but  as  it  puts 
in  issue  the  execution  of  the  note, 
it  should,  under  the  statute,  be 
verified  by  affidavit.  Chambers  v. 
Games,         ....       320 

16.  A  general  allegation  of  fraud  in 
a  plea  to  an  action  on  a  ])r(mns.sory 
note  is  sufficient.  Hildreth  v. 
Tomlinson,  ....       360 

17.  Pleas  averriilg  that  one  of  two 
payees  of  a  note  became  bankrupt 
after  the  note  svas  made,  and  before 


INDEX. 


n-J'J 


it  was  indorsed  to  tlie  plaintiff,  are 
defective  liniess  they  aver  that  the 
jiarty  who  indorsed  the  note  was 
not  authorized  to  do  so  ;  that  the 
note  was  or  should  have  been  set 
forth  in  the  bankrupt's  inventory 
of  assets  ;  and  that  the  note  was 
so  held  as  to  be  vested  by  virtue 
of  the  decree  in  the  assignee  of 
the  bankrupt,  or  that  he  otherwise 
acquired  an  interest  or  control  over 
the  note.     Falweiler  v.  Singer,    372 

18.  A  general  plea  that  a  note  was 
obtained  by  fraud  and  circumven- 
tion is  good.     IStrmvser  v.  Johnson, 

373 

19.  Where  profert  is  made  of  a  re- 
lease which  had  been  pleaded,  it 
becomes  a  part  of  the  i^lea.  Knott 
V.  Burlcrson,         .        .         .       600 

20.  Where  a  plea  is  defective  only  in 
form,  a  general  demurrer  to  it 
should  be  overruled.  Darling  v. 
Me.achum,    ....       602 

See  Action  of  Right,  3. 
Limitation  of  Actions. 
Notice,  10. 

4.  Replication. 

21.  Replication  demurrable  if  it  does 
not  traverse  the  material  allega- 
tions of  the  plea.  Roberts  v.  Al- 
h-ight 120 

22.  Where  a  statute  of  limitation  is 
pleaded,  which  cannot  operate  as 
a  bar  to  the  action,  and  a  replica- 
tion is  filed,  that  one  of  the  joint 
debtors  had  promised  payment 
within  six  years,  to  which  replica- 
tion defendant  demurred;  it  was 
held,  that  the  demurrer  related 
back  to  the  first  mistake  in  plead- 
ing, and  that  plaintiff  was  entitled 
to  judgment  on  the  demurrer. 
Wile  V.  Matherson,       .        .       184 


POSSESSION. 

See  Action  of  Right. 

PRACTICE. 
I. — In  Equity. 

1.  No  motion  having  been  made  to 
amend,  -a  bill  may  be  dismissed 
and  a  decree  rendered  upon  the 
demurrer.     De  Louis  v.  Meek,      55 


2.  Upon  a  general  and  special  de- 
murrer,  it  is  not  necessary  to  make 
good  all  the  causes  of  demurrer 
assigned.  If  sustained  for  one  out 
of  several  causes  affecting  the 
whole  bill  it  is  sufficient,        .       ib. 

3.  A  deumrrer  puts  in  issue  the 
entire  equity  of  the  bill,  and  if 
sustained  as  to  some  it  should  be 
as  to  all  defendants,       .         .       ib. 

4.  The  objection  of  a  misjoinder  of 
complainants  cannot  be  made  for 
the  first  time  at  the  hearing,  but 
should  be  assigned  among  the 
causes  of  demurrer,       .  .       ib, 

5.  Where  a  judgment  in  partition  is 
alleged  to  have  been  obtained  by 
fraud,  it  may  be  impeached  by  an 
original  bill  without  leave  of  the 
court,     .         .         .         .         .       ib. 

6.  The  rule  that  a  judgment  will  not 
be  reversed  where  the  error  does 
not  affirmatively  appear  of  record 
applies  to  cases  at  law,  and  not  tp 
appeals  in  chancery.  Austin  v. 
Carpenter,   .         .         .         .131 

7.  Evidence  will  not  be  considered 
which  is  not  responsive  to  the  bill 
or  answer.    Shaw  v.  Livermore,  338 

II. — In  Criminal  Cases. 

8.  American  courts  have  dispensed 
with  many  of  the  stringent  rules 
and  nice  technicalities  which  for- 
merly obtained  in  the  English 
courts  in  criminal  cases.  Harriman 
V.  State,  .         .         .         .271 

9.  Irregularity  in  proceedings  is 
waived  by  pleading  and  submitting 
to  a  verdict  without  objection,    ib. 

9a.  Many  legal  forms  and  techni- 
calities possess  marked  utility  in 
practice,         ....       ib. 

10.  A  prisoner  should  be  present  at 
his  trial,  and  when  the  verdict  is 
pronounced,  .  .         .       ib. 

11.  Where  the  record  shows  that  the 
prisoner  was  regularly  arraigned, 
that  he  was  brought  into  court, 
and  took  bills  of  exceptions,  it 
sufficiently  shows  his  presence 
during  the  trial,     .  .         .      ib 

12.  A  prisoner  cannot  complain  of 
proceedings  which  were  beneficial 
to  him  and  in  compliance  with  his 
request.     Nash  v.  State,         .     286 

See  Deposition. 
Indictment. 
Venue. 


630 


ENDEX. 


III. — At  Law. 

1.  Appeal. 

13.  Where  an  appeal  is  allowed 
under  a  special  statute,  without 
a  bond  as  required,  it  is  not  error 
to  dismiss  the  appeal.  But  if  a 
recognizance  had  been  filed  as 
authorized  by  a  subsequent  general 
statute,  the  appeal  should  not  be 
dimissed.  Sb.  "  Lake  of  the  Woods  " 
V.  Shaw,         ....       19 

14.  In  an  appeal  to  the  district  court, 
where  the  appellant  is  in  default, 
the  judgment  of  the  justice  may  be 
affirmed.     Taylor  v.  Barber,       350 

2.  Certiorari. 
16.  A  judgment  taken  to  the  district 
court  by  writ  of  certiorari  may  be 
reversed,     Wilsons.  Albright,    125 

3.  Continuance. 

16.  A  motion  for  a  continuance  on  the 
ground  of  absent  papers,  taken  by 
the  attorney  of  the  party  applying 
for  the  continuance,  was  correctlj'^ 
refused.      Wright  v.  Clark,    .       86 

4.  Damage,  Measure  of. 

17.  Where  suit  is  brought  on  a  writ- 
ten or  special  contract,  it  must 
regulate  plaintiff's  right  to  recover 
as  well  as  the  amount  recovered. 
Buffh  V.  Chapman,         .        .     549 

18.  Where  plaintiff  sued  for  work 
done  pursuant  to  a  written  contract, 
and  filed  no  bill  of  particulars,  it  is 
error  to  admit  evidence  to  show 
that  he  had  sustained  damages  in 
consequence  of  delays  occasioned 
by  defendants  failing  to  furnish  the 
materials  promptly,        .         .       ib. 

19.  By  claiming  the  benefit  of  a  spe- 
ci'd  contract  and  making  it  the 
gravamen  of  his  action,  the  plaintiff 
is  precluded  from  recovering  dam- 
ages for  delay,  &c.,         .         .       ib. 

20.  A  party  cannot  avail  himself  of 
his  own  objections  to  work  done  for 
him  and  his  refusal  to  accept,  as  a 
reason  for  not  paying  for  it ;  nor 
can  he  give  in  evidence  his  own 
acts  and  declarations,  in  order  to 
Bhow  that  another  party  has  failed 
in  his  contract  to  him.  Crookshank 
V.  Mallnry,     ....      257 

21.  Where  a  dwelling  frame  is  defec- 
tively erected,   but   still  is  of  sub- 


stantial value  to  the  defendant,  for 
the  purpose  intended,  the  plaintiff 
would  be  entitled  to  a  compensa- 
tion, to  be  ascertained  by  deducting 
from  the  contract  price  so  much 
as  the  frame  was  worth,  less  than 
it  would  have  been  if  completed 
according  to  agreement,  .       ib. 

22.  It  was  not  necessary  for  the  de- 
fendants to  accept  the  dwelling  in 
order  to  justify  a  recovery  against 
them,    .         .         .         ,         ,       ib. 

5.  Default. 

23.  Where  default  is  made  by  the 
appellant,  the  judgment  of  a  jus- 
tice of  the  peace  may  be  affirmed 
in  the  district  court.  Wright  v. 
Clark, 86 

24.  Where  a  party  appeals  from  a 
judgment  by  default,  he  may  on 
first  appearance  in  the  district 
court  object  to  the  manner  or  style 
in  which  he  is  sued.  Hall  v. 
Bennett,         ....     466' 

25.  It  is  error  to  render  a  judgment 
by  defaxilt  if  a  plea  is  on  file  in  the 
case.     Brown  v.  Hollenbeck,       318 

26.  After  a  plea  is  filed  the  issue 
should  be  tried,     .         .         ,       ib. 

• 

6.  Demurrer. 

27.  Where  a  demurrer  is  overruled, 
and  the  defendant  fails  to  plead 
over  within  the  time  required  by 
rule  of  court,  judgment  may  be 
rendered  against  him.  Cameron  v. 
L'oyle, 154 

7.  Instruction. 

28.  By  an  act  approved  January  15, 
1849,  all  instructions  from  district 
judges  to  petit  juries  are  to  be 
given  in  writing.    Pierson  v.  Baird, 

235 

29.  That  law  took  effect  by  publica- 
tion in  newspapers,  on  31st  Janu- 
ary, 1849,      .         .         .         .       ib. 

29a.  Courts  should  ktiow,  ex  officio, 
at  what  time  laws  take  effect,       ib. 

30.  Where  special  instructions  asked 
were  included  in  those  of  a  more 
general  character,  it  was  not  error 
to  refuse  them.    Price  v. A  lexander, 

427 

31.  Under  the  statute  of  1849  it  is 
erroneous  for  a  district  judge  to 
charge  a  jury  or  to  modify  instruc- 
tions orally.     Parris  v.  27te  State, 

449 


I^'DEX. 


631 


32.  Legal  instructions  tnay  be  refused 
and  civen  in  a  modified  form  in 
writing,  as  the  circumstances  and 
evidence  of  the  case  may  require, 

lb. 

33.  Where  an  instruction  extends 
merely  to  the  legal  effect  and 
meaning  of  an  instrument,  it  can- 
not be  objected  to  as  an  instruction 
upon  the  facts  in  the  case.  Lucas 
V.  Snyder,     .         .         .         .     499 

34.  Where  the  court  instructed  the 
jury  in  relation  to  the  legal  effect 
of  deeds,  it  cannot  be  considered  a 
charge  upon  the  facts.  Durham  v. 
Daniels,       ....      518 

8.  Judgments. 

35.  A  judgment  by  default  for  costs 
may  be  set  aside  and  the  entire 
case  readjudicated.  Hughes  v.  Mil- 
ler,         9 

36.  Judgment  may  be  rendered 
against  the  security  in  an  appeal 
bond  from  a  justice  of  the  peace. 
Fletcher  V .  Conly,  .         .       88 

37.  A  judgment  will  not  be  reversed 
for  a  mere  diminution  in  the  record 
which  might  have  been  perfected. 
Wilson  \\  Albright,       .         .       125 

38.  Judgment  cannt)t  be  impeached 
collaterally  for  mere  irregularity. 
Otmeron  X.  Boyle,  .         .1.54 

39.  Judgment  may  be  rendered  for 
the  penalty  named  in  a  bond,  as 
a  security  for  the  damages  re- 
covered upon  the  breaches  assessed, 

lb. 

40.  Judgment  should  not  be  rendered 
for  a  greater  amount  of  damages 
than  is  claimed  in  the  declaration, 

ib. 

41.  A  judgment  in  debt  was  rendered 
in  an  action  of  assumpsit,  and  as 
all  other  proceedings  in  the  case  are 
regular,  it  was  held  that  the  judg- 
ment should  not  be  reversi'd,  liut 
should  be  correcti'd  conformable  to 
the  action.     Galloway  Vi  Trout,  695 

42.  Where  a  judgment  is  rendered 
upon  a  bond,  it  should  be  for  the 
amount  of  the  penalty  ;  with  an 
order  tliat  an  execution  issue  only 
for  the  amount  of  damages  proved 
to  have  been  sustained  by  the 
breaches.     Nelson  v.  Gray,         397 

43.  After  a  verdict  and  judgment 
have  been  rendered  without  objec- 
tion to  the  complaint,  a  court 
should  not  entertain  merely  forma', 
defects.     Sha%v  v.  Gordon,  376 


9.  Motions. 

44.  Where  two  motions  are  pending 
at  the  same  time — oni-  bj'defendnnt, 
to  affirm  for  the  want  of  notice,  and 
the  other  by  plaintiff,  for  leave  to 
withdraw  the  writ  of  error — the 
supreme  court  will,  at  discretion, 
give  preference  to  that  motion  which 
the  nature  and  justice  of  the  case 
may  require.     Roffcrs  v.  Alexander, 

237 

45.  Where  a  party  filed  a  motion  in 
the  district  court,  to  affirm,  for 
want  of  notice,  but  before  the  mot  ion 
was  decided  filed  a  demurrer,  it  will 
not  be  considered  an  appearance  or 
waiver  of  notice.  Mears  v.  Garret- 
son 316 


10.  Nonsuit. 

46.  A  nonsuit  for  failing  to  reply 
to  pleas,  when  an  issue  in  fact  is 
joined  on  another  plea,  is  errone- 
ous.    Roberts  v.  Albright,       .     120 

47.  A  motion  for  a  nonsuit,  on  the 
ground  of  plaintiff's  failtjre  to 
appear,  will  not  be  granted,  if 
plaintiff  appears  before  the  motion 
is  decided.       Wright  v.  Phillips, 

191 

48.  If  evidence  is  adduced  which 
tends,  even  remotely,  to  prove  facts, 
which,  if  established,  would  support 
the  action,  a  nonsuit  should  not  be 
granted.      Wiley  v.  Shoemak.     205 

49.  If  a  verdict  for  the  plaintiff  would 
be  clearly  against  the  weight  and 
legal  effect  of  the  evidence,  a  non- 
suit may  be  ordered,    .         .         ib. 

50.  Amotion  to  nonsuit  plaintiff  after 
evidence  is  submitted,  is  in  the  na- 
ture of  a  demurrer  to  evidence,  ib. 

51.  A  nonsuit  should  not  be  granted 
without  the  consent  of  plaintiff, 
unless  the  evidence  is  entirely  ir- 
relevant, or  has  no  bearing  iipon  a 
material  point,  without  proof  of 
which  a  verdict  could  not  be  sup- 
ported,       ,        .        .        .        ib. 

11.  Trial 

52.  A  trial  of  the  right  of  property 
cannot  be  had,  under  the  statute, 
after  the  property  has  been  sold, 
and  jwssession  passed  to  a  third 
person  by  virtue  oi  legal  process. 
Hughes  V.  Miller,  .         .         9 

53.  lu  a  proceeding  to  try  the  right 


632 


INDEX. 


of  property  taken  on  execution,  a 
judgment  liy  default  against  the 
claimant  will  authorize  the  officer 
to  proceed  with  the  sale,        .       ib. 

54.  In  an  action  of  right,  the  plaintiff 
must  recover  upon  the  strength  and 
validity  of  his  own  title,  and  should 
show  a  valid  subsisting  interest  in 
the  land.  No  such  interest  can 
accrue  from  a  void  judgment.  Heid 
V.  Wright,      .         .         .         .15 

55.  Not  necessary  to  prove  the  iden- 
tity of  the  drawee  of  an  order 
before  it  is  offered  in  evidence. 
Fletcher  v.  Conly,  .         .       88 

56.  Where  a  party  enters  credits  upon 
the  instrument  sued  on,  it  is  not 
necessary  for  the  defendant  to  prove 
them.     Lloyd  v.  McC'lure,      .     139 

57.  After  going  into  a  trial  upon  the 
merits,  and  tlie  plaintiff  has  proved 
his  claim  for  work,  the  defendant 
should  not  be  permitted  to  intro- 
duce evidence  that  the  v/ork  was 
done  for  him  and  another  jointly, 
in  order  to  avoid  the  liability. 
nine  v.  Houston,  .         .         .161 

68.  The  omission  to  join  all  the  par- 
ties should  be  taken  advantage  of 
by  plea  in  abatement,    .         .       ib. 

59.  By  going  to  trial  on  the  merits, 
without  exception  to  the  cause  of 
action,  any  defect  in  that  particular 
would  be  considered  as  waived  by 
the  defendant.     Taylor  v.  Barber, 

350 

60.  Where  an  agreement  was  entered 
into  ' '  for  the  purpose  of  trial  before 
the  justice,  and  in  no  other  court," 
such  agi-eement  should  not  be  used 
on  trial  in  the  district  court  if 
objected  to  by  one  of  the  parties. 
Rogers  v.  Alexander,      .        .     443 

61.  A  party  is  entitled  to  a  jury  trial 
upon  an  issue  of  facts,  even  if  those 
facts  had  been  previously  admitted 
by  agreement,  m-  if  the  party  had 
agreed  to  submit  the  case  to  the 
court,  but  had  withdrawn  the  agree- 
ment,   .         .         .         .         .       ib. 

62.  Aprosecutionfor  selling  spirituous 
liquors  in  less  quantity  than  one 
gallon  should  be  conducted  in  the 
name  of  "  The  State  of  Iowa,"     ib. 


12.  Variance. 

68.  Taw  «te»A9if>*i0r  of  an  order  becomes 
liable  to  ttae  payee  named  in  the 
order,  and    i    "nere  technical  vari- 


ance will  not  defeat  his  liability. 
Fletchers.  Conly,  .  88 

64.  Where  the  transcript  of  a  justice 
describes  a  note  to  be  dated  April 
12,  when  the  note  offered  in  evi- 
dence is  dated  April  2,  but  is  other- 
wise identified  as  the  note  upon 
which  suit  was  brought,  the  vari- 
ance is  not  fatal.     Rife  v .  Pierson, 

129 

65.  A  variance  between  the  writ  and 
declaration  cannot  be  taken  advan- 
tage of  by  demurrer  to  the  declara- 
tion.    Culver  V.  Whip2)le,      .     365 

66.  In  case  of  such  a  variance,  the 
writ  may,  on  payment  of  cost,  &c., 
be  amended  so  as  to  conform  to  the 
declaration,  .         .         .      ib. 

67.  Where  there  is  a  manifest  vari- 
ance between  the  names  to  a  note 
and  the  names  to  a  record,  the  note 
should  not  be  admitted  in  evidence. 
Hall  v.  Bennett,     .         .        •     466 


PRAIRIE  FIRE. 

1.  Ordinary  caution  and  honest  mo- 
tives in  setting  fire  to  a  prairie,  and 
due  diligence  in  preventing  it  from 
spreading,  is  a  good  defence  to  an 
action  for  damages.  De  France  v. 
Spencer,         ....     462 


PROBATE  COURT. 

1.  The  probate  court,  though  limited 
and  inferior  in  [lower.  had  complete 
original  jurisdiction  in  administer- 
ing the  estates  of  decedents,  and 
any  judgment,  order  or  decree  up- 
on a  subject  matter,  and  between 
parties  over  which  the  court  had 
jurisdiction,  cannot  be  collaterally 
questioned.  Barney  v.  Chittenden, 
165 
See  Evidence,  7. 


PROMISSORY  NOTES. 

1.  After  a  note  for  a  certain  sum  pay- 
able in  flour  is  due,  it  becomes  a 
cash  note,  and  a  demand  of  pay- 
ment is  not  necessary.  Wiley  v. 
Shoemak,       .         .         .         .205 

2.  Where  a  promissory  note  for  a 
sum  certain  is  payable  in  leather 
at  the  tan  yard  of  the  maker,  a  ds- 


INDEX. 


633 


mand  of  tLe  leather  is  not  neces- 
sary.    Gaines  v.  Manning,    .     251 

8.  In  a  suit  against  the  maker  of  a 
note,  or  the  acceptor  of  a  bill  pay- 
able at  a  specified  time  and  place, 
it  is  not  necessary  to  aver  or  prove 
a  demand  of  payment,  and  the  same 
rule  is  applicable  to  notes  payable 
in  specific  property,       .  .       ih. 

4.  In  order  to  discharge  himself  from 
a  note  payable  in  specific  articles, 
it  is  necessary  for  the  maker  to 
show  that  he  had  paid,  tendered  or 
seb  apart  the  property  as  a  pay- 
ment of  the  note,  .         .       ih. 

B.  A  demand  after  a  property  note 
becomes  due,  is  a  waiver  of  any 
pre viou s  breach ,  and  gives  the  maker 
A  second  opportunity  to  pay  in  pro- 
perty,     ib. 

6.  A  mere  indorsement  of  a  payment 
on  a  note  is  not  prima  facie  evi- 
dence of  payment,  nor  is  it  evi- 
dence of  a  new  promise  to  revive  a 
note  barred  by  the  statute  of  limit- 
ations, or  discharged  by  a  decree 
in  bankruptcy,  unless  it  is  shown 
that  the  indorsement  was  made  by 
the  defendant,  or  by  his  consent,  or 
that  he  actually  paid  the  amount 
indorsed,     Viele  v.  Ogilvie,        326 

7.  Under  the  statute,  the  signature  of 
an  indorser  of  a  note  need  not  be 
proved,  unless  it  is  denied  under 
oath.     Steinkelber  v.  Edwards,  366 

8.  Where  a  note  is  made  payable  in 
corn  on  or  before  a  given  day,  a 
demand  is  not  necessary.  Phillips 
V.  Cooley,       ....     456 

See  Bill  of  Particulars,  2. 
Evidence,  10,  11. 
Partnership,  3. 
Pleading,  12,  15, 16, 17,  18. 
Practice,  63,  64. 

PUBLICATION. 
8u  Notice,  5,  6,  7,  8. 


RECORD. 

Records  of  the  territorial  district 
courts  of  Iowa  not  to  be  considered 
as  foreign  in  the  state  courts  of 
Iowa.      Wrir/hf,  v.  Marsh,       .       94 

The  record  proper  in  a  criminal 
case,  after    stating    the    time  and 

Vol.  it. 


place  of  holding  court,  need  only 

set  forth  the  indictment,  properly 
indorsed  as  foimd  by  the  grand 
jury  ;  the  arraignment  of  the  ac- 
cused ;  his  plea  ;  the  impanneling 
of  the  traverse  jury ;  their  verdict.; 
and  the  judgment  of  the  court. 
Harriman  v.  State,      .         .       271 

3.  Any  decision  of  a  court  made  pre- 
liminary to  final  judgment,  is,  per 
se,  a  part  of  the  record ;  but  all 
other  proceedings,  such  as  motions, 
exceptions,  testimony  and  the  like, 
are  no  part  of  the  record  unless 
made  so  by  order  of  the  court,  by 
agreement  of  the  parties,  by  de- 
murrer to  evidence,  by  special  ver- 
dict or  by  bill  of  exceptions,        ih. 

4.  Only  such  matters  as  are  of  record 
can  be  brought  to  the  notice  and 
review  of  this  court,      .         .       ib. 

5.  A  motion,  supported  by  affidavit, 
is  no  part  of  the  record  unless  made 
so  by  bill  of  exceptions.  Ahbce  v. 
Higgim,       .        .        .        .635 


RECOVERY. 
See  Practice,  17,  22. 

REGISTER'S  RECEIPT. 
See  Evidence,  5. 

REGISTRATION. 

See  CoNVETANOKi 

Lien. 

RELEASE. 

1.  The  construction  of  a  release  is  a 
question  of  law  to  be  determined 
by  the  court.     Knott  v.  Burlerson, 

600 

2.  Where  legal  terms  are  employed 
in  a  release,  it  must  be  presumed 
that  the  parties  fully  understood 
the  legal  import  of  the  words,  and 
the  court  will  give  effect  to  that 
understanding,      .         .         .      ib. 

See  Accord  and  Satisfaction,  2. 
Pleading,  13,  19. 

REPLEVIN. 

1.  In  an  action  of  replevin  against 

41 


634 


INDEX. 


two  or  more,  it  is  error  tc  instruct 
the  jury  that,  "  If  either  of  the  de- 
fendants was  not  guilty,  they  must 
find  for  both  ;  that  one  alone  could 
not  be  found  guilty."  Carothers  v. 
Van  Hayan,  .         .         .     481 

2.  In  an  action  of  replevin  commenced 
before  a  justice  of  the  peace,  where 
the  plaintiff  fails  to  prosecute  his 
suit  with  effect,  or  adduce  any  proof 
ill  support  of  his  action,  the  law 
presumes  title  to  be  in  the  defend- 
ant, and  it  is  only  necessaiy  for 
him  to  prove  the  value  of  the  pro- 
perty, in  order  to  recover  restitu- 
tion or  payment  of  its  value.  Rick- 
ner  v.  Dixon,         .        .        .591 

See  Bond,  4. 

Pleading,  6,  13,  14. 


RETURN. 
See  Sheriff's  Return. 


s 


SCHOOL  DISTRICT. 

,  Where  the  inhabitants  of  a  school 
district  levied  a  tax  upon  them- 
selves, and  sufficient  had  been  col- 
lected for  the  purpose  of  paying 
the  teacher  a  balance  his  due,  for 
which  he  had  an  order  on  the 
treasurer,  and  the  officers  of  the 
district  refused  to  pay  the  order 
after  a  proper  demand,  it  was  held 
that  the  teacher  might  recover,  in 
an  action  upon  the  order  against 
the  district.  McCasky  v.  School 
Distna,         .        .        .        .482 


SEAL. 

See  Attestation,  2. 
Bond,  1,  2. 


SET-OFF. 

1.  Where  the  plaintiff  in  an  action  of 
right  waives  all  but  nominal  dam- 
ages, the  defendant  cannot  intro- 
duce evidence  of  a  set-off  for  im- 
provements.   Daniels  v.  Bates.   151 

2.  A  mere  right  to  a  reduction    uf 


plaintiff's  demand,  in  consequenc* 
of  defects  in  the  work  for  which 
it  was  charged,  is  not  a  demand 
which  can  be  brought  in  a  set-off 
against  plaintiffs  demand.  Crook- 
shank  V.  Mallory,  .         .     257 

3.  A  set-off  must  be  predicated  upon 
an  independant  demand,        .       ib. 

4.  Proof  of  a  set-off  may  be  excluded 
unless  defendant  has  filed  with  his 
plea  the  particular  items  of  his  de- 
mand.    Chambers  v.  Games,       320 

See  Settlement. 


SETTLEMENT. 

1.  A  note  is  prima  facie  evidence  of 
a  settlement  between  the  parties  to 
it,  so  as  to  exclude  items  of  set- 
off, charged  prior  to  the  date  of  the 
note,  unless  the  defendant  first  prove 
or  offer  to  prove  that  such  items 
were  not  included  in  the  settlement 
upon  which  the  note  was  given. 
Smith  V,  Bissell,    .        .         .379 


SHERIFF. 

.  Where,  on  account  of  prejudice, 

interest,  or  other  objection,  the 
sheriff  is  rendered  incompetent, 
the  coroner  should  perform  his 
duty  ;  but  if  the  party  objecting 
to  the  sheriff  asks  the  court  to 
appoint  an  elisor,  he,  by  implica- 
cation,  manifests  an  objection  to 
the  coroner  also,  which  will  justify 
the  court  in  appointing  an  elisor. 
Harriman  v.  Tlie  State,  .  270 
,  Where  a  jury  was  summoned  by 
the  .sheriff  after  the  prisoner  made 
affidavit  that  the  sheriff  was  preju- 
diced again.st  him,  but  the  jury 
was  not  objected  to  until  after  the 
verdict,  it  was  held  that  the  objec- 
tion came  too  late,  and  that  the 
irregularity  was  waived,         .       ib. 


SHERIFF'S  DEED. 
See  Description. 

SHERIFF'S  RETURN. 

1.  A  mere  omission  or  irregularity  in 
a  .sheriff's  return  cannot  vitiate  a 


INDEX. 


635 


sale  made  under  execution,  so  as  to 
invalidate  the  right  uf  a  bona  fide 
piircliaser.  Hopping  v.  Bumam,  39 
la.  Sheriff's  returns  of  levj-,  &c.,  not 
essential  to  title,   .         .         .       ib. 

2.  Where  a  sheriffs  return  of  an  exe- 
cution sale  does  not  show  that  no- 
tice of  the  sale  was  served  upon 
execution  defendant,  it  will  not  be 
presiimed  that  notice  was  not  given. 
Corridl  v.  Doolittle,      .         .     385 

3.  A  sheriff's  returns  may  be  so 
amended  as  to  set  forth  truthfully 
the  facts  of  the  service.  Patterson 
V.  State  of  Indiana,        .         .     492 

4.  Where  it  appears  by  the  returns 
of  tlie  sheriff  that  a  writ  was  served 
in  the  manner  provided  by  statute, 
it  is  good,  even  if  it  should  appear 
that  the  defendant  had  been  three 
months  absent  from  hia  dwelling. 
Abbee  v.  Higgins,  .         .     535 

Sec  Bond,  4. 


SLANDER. 

1.  P,  in  speaking  of  L,  said,  "  He  is 
a  thief ;  he  stole  my  wheat,  and 
ground  it,  and  sold  the  flour  to  the 
Indians  : "  held  that  these  words 
are,  per  se,  actionable  in  slander. 
Parker  V.  Lewis,    .         .         .311 

2.  Words  actionable  in  slander  by 
implication  of  law,  are  to  be  con- 
sidered as  false  and  malicious,  un- 
less the  contrary  is  made  to  appear 
by  the  evidence,     .         .  .       ib. 

3.  In  slander,  wiiere  the  words  spoken 
are  actionable  per  se,  special  dam- 
ages need  not  be  alleged  or  proved, 

ib. 

4.  It  is  no  defence  to  an  action  of 
slander,  that  the  slanderous  words 
were  spoken  by  the  fireside  of  the 
defendant,  in  the  presence  of  but 
two  or  three  neighbors.  This  cir- 
cumstance will  not  remove  the 
presumption  of  malice.  Shaw  v. 
Sveeney,    .         .         .         .         587 

6.  Exceptions  to  the  general  rule  of 
presumptive  malice  explained,    ib. 

See  Evidence,  9. 
Pleading,  9. 


SPECIFIC  PERFORMANCE. 
1.  Where  S  agreed  to  deed  a  lot  to  L 


upon  condition  that  he  woyld  make 
certain  improvements  and  live 
upon  the  lot,  it  was  held  that  if  L 
performed  the  substantial  condi- 
tions with  ordinary  diligence,  he 
was  entitled  to  a  specific  perform- 
ance.    Shaw  V.  Livermore,  338 

2.  Equity  will  extend  relief,  even  if 
there  has  not  been  a  strict  legal 
compliance  with  the  terms  of  tiie 
contract,  if  it  can  be  done  consist- 
ently with  the  essence  of  the  agree- 
ment, ....         ib. 

3.  Where  one  of  the  conditions  upon 
which  a  deed  should  be  made  was, 
that  the  purchaser  should  reside 
up(.)n  the  lot,  but  the  term  of  such 
residence  was  not  designatetl,  it  was 
held  that  as  the  purchaser  had  com- 
plied with  all  the  other  conditions 
to  secure  title,  and  had  resided 
upon  the  lot  nearly  two  years  be- 
fore he  left  it,  that  such  leaving 
would  not  be  au  abandonment,  and 
that  he  was  entitled  to  a  deed,     ib. 

4.  The  recision  or  the  specific  per- 
formance of  a  contract  is  left  to  the 
sound  discretion  of  the  chancellor, 
to  be  exercised  upon  a  consideration 
of  the  circumstances  of  each  case, 
under  applicable  general  rules  of 
equity,  ....         ib. 

5.  The  statute  authorizes  a  proceed- 
ing against  an  executor  or  adminis- 
trator for  a  conveyance  in  pursuance 
of  a  contract  with  the  deceased. 
Fulwider  v.  Peterkin,  .         622 

6.  In  a  proceeding  against  an  estate 
for  a  specific  performance,  it  is  not 
necessary  to  make  the  heirs  a  party 
to  the  conveyance,       .         .         ib. 


STATUTE. 

1.  Legislation  in  derogation  of  trial 
by  jury,  and  of  proceedings  accord- 
ing to  the  course  of  the  common 
law,  is  in  conflict  with  the  ordinance 
of  1787,  and  therefore  void.  Eeid 
V.  Wright,    ....         15 

2.  An  act  of  the  legislature  of  the 
territory  of  Wisconsin,  entitled, 
"An  act  for  the  partition  of  the 
half-breed  lands,  and  for  other  pur- 
poses," approved  January  16,  1838, 
and  an  act  supplementarj'  thereto, 
approved  June  22,  1838,  and  also 
an  act  passed  by  the  Iowa  legisla- 
ture, approved  January  25,  1839,  to 
repeal  both  of  said  acts,  are  repug- 


636 


INDEX. 


nant  to  the  ordinance  of  1787,  and 
also  to  the  organic  law  of  Wiscon- 
sin and  Iowa,  and  are  therefore 
void, ib. 

3.  So  al.-<o  are  judgments  rendered  by 
virtue  of  said  laws,       .  .         ib, 

i.  No  statute  can  constitutionally  de- 
rogate a  vested  right.  Wright  v. 
Marsh  et  aL,        ...         94 

5.  Statutes  made  to  promote  an  im- 
partial administration  of  justice 
should  receive  a  liberal  construc- 
tion.     Lyne  et  al.  v.  Hoyle  et  al., 

135 

6.  No  statute  should  have  a  retro- 
spect beyond  the  period  of  its  com- 
mencement, nor  be  so  construed  as 
to  divest  acquired  rights.  Forsyth 
V.  Rijpley,  .         .         .         181 

7.  Statutes  in  pari  materia  should  be 
taken  together  as  one  law,  and 
should,  if  practicable,  be  so  con- 
strued that  every  provision  shall 
continue  in  force.  Garriman  v.  The 
State,  ....         270 

8.  In  a  question  of  construction,  all 
doubt  should  favor  the  validity  of 
a  law  under  which  rights  have  been 
acquired,      .         .         .        .        t&. 


SUMMONS. 


,  The  amount  of  a  plaintiff's  claim 
need  not  be  mentioned  in  the  body 
of  a  summons  from  a  justice  of  the 
peace  ;  but  the  amount  claimed, 
including  interest  and  costs,  should 
be  indorsed  upon  the  summons. 
Htdinger  v.  Silsbee,  .  .  363 
The  want  of  an  indorsement  of  the 
amount  of  jjlaintifF's  claim  cannot 
be  taken  advantage  of  after  the 
general  appearance  of  the  defend- 
ant. Such  appearance  waives  the 
■want  of  indorsement,  .         .         ib. 


See  Capias,  3. 
Writs. 


SURVEYS. 


1.  Surveys  made  by  the  general  go- 
vernment are  public,  and  within 
the  judicial  knowledge  of  courts. 
Wright  \.  Phillips,     .  .  191 


SUPREME  COURT. 

See  Attorney,  3. 
Injukction. 
Practice,  44. 


TAX. 

See  Deed,  1. 

School  Distbiot, 


TENDER. 

.  If  a  debtor  makes  a  tender  of  the 
specific  articles  he  has  promised, 
and  properly  designate  and  set 
them  apart  at  the  time  and  place 
stipulated,  and  the  creditor  is  not 
there  to  receive,  or  refuses  to  accept 
the  property,  the  debt  is  thereby 
discharged,  and  the  property  passes 
to  the  creditor.  Games  v.  Man- 
ning, ....        251 


TERMS  OF  COURT. 
See  Courts,  2,  3,  7,  8,  9,  IC. 

TRANSCRIPT. 

1.  Where  the  transcript  of  a  justice 
does  not  set  forth  the  judgment  in 
hrec  verba,  but  contains  sufficient  to 
show  its  character,  its  amoiyit  and 
against  whom  it  was  rendered,  it  is 
sufficient  to  give  the  court  jurisdic- 
tion.    Wilson  V.  Albright,  125 

See  Justice  of  Peace,  1. 

TRESPASS. 

1.  The  action  of  trespass  quare  clau- 
sum  f regit  is  local,  and  can  only  be 
entertained  by  a  justice  of  the 
county  in  which  the  land  is  situ- 
ated.    Chapman  v.  Morgan,       374 

TRIAL. 

See  Practice,  52,  62. 


INDEX. 


637 


U 

UNLAWFUL  DETAINER. 

1.  In  an  action  of  unlawful  detainer, 
a  complaint  is  good  which  contains 
all  the  avei-ments  of  facts  required 
by  statute.     Shaw  v.  Gordon,     376 


V 

VARIANCE. 
See  Practice,  63,  67. 

VENUE. 

1.  If  a  criminal  act  has  been  com- 
mitted in  one  county,  and  consum- 
mated in  another,  the  oflFender  may 
be  indicted  in  either  county.  Nask 
V.  State,     ....         286 

2.  Where  a  mortal  blow  was  inflicted 
in  Scott,  from  which  death  took 
place  in  Muscatine  county,  it  was 
held  that  the  latter  county  had 
jurisdiction,         .         .         .         ih. 

3.  The  statute  which  provides  that, 
"  when  a  person  shall  commit  an 
offence  on  board  of  any  vessel  or 
float,  he  may  be  indicted  for  the 
same  in  any  county  through  any 
part  of  which  such  vessel  or  float 
may  have  passed  on  that  trip  or 
voyage,"  is  not  confined  to  that 
part  of  the  trip  or  voyage  which 
had  been  performed  before  the 
offence  was  committed,  but  it  ex- 
tends to  the  entire  trip,         ,       ib. 

See  Pleading,  8. 

VERDICT. 

1.  A  verdict  defective  in  form,  may 
be  corrected  by  request  or  consent 
of  the  jurors  at  any  time  before 
they  are  dismissed  and  the  verdict 
is  recorded.      Wright  v.    Phillips, 

191 

2.  Where  the  declaration  in  slander 
contains  several  counts,  two  of 
which  charge  the  speaking  of  words 
at  different  times,  and  a  general 
verdict  is  rendered,  the  judgment 
will  not  be  reversed.  Bradley  v. 
Kennedy,     .        .        .        .231 


See  Action  of  Right,  5. 
New  Trials,  1,  2. 


w 

WARRANTY. 
See  Deed,  2,  3. 

WILLS. 

1.  It  will  not  be  presumed  that  the 
probate  of  a  will  was  granted  with- 
out sufficient  proof,  nor  that  letters 
testamentary  were  issued  without 
the  Ijond  required  by  law.  Barney 
V.  Chittenden,        .         .         .165 

2.  Wheie  it  appears  to  the  court 
that  no  person  interested  intends  to 
object  to  the  probate  of  a  will,  it 
may  be  granted  upon  the  testimony 
of  one  subscribing  witness,    .       ib. 

WITNESS. 

1 .  Where  execution  returns  show  that 
sufficient  property  was  levied  upon 
and  appraised  to  satisfy  the  judg- 
ment, the  constable  who  made  the 
levy  and  return  is  not  a  competent 
witness  to  prove  that  the  execution 
was  not  satisfied  by  the  levy. 
Lucas  V.  Cassaday,         .        .208 

2.  The  payee  of  a  note,  which  he  in- 
dorsed to  the  holder,  is  a  competent 
witness  to  prove  usurous  interest. 
Richard  v.  Marshman, .        .217 

3 .  An  attorney  to  whom  a  claim  was 
intrusted  for  collection,  and  who 
employed  another  attorney  to  com- 
mence suit  upon  it,  is  not  an  in- 
competent witness.  Walsh  v. 
Murphy,       ....     227 

4.  An  attorney  may  be  a  witness  for 
his  client,     ....       ih. 

5.  Where  property  is  taken  from  a 
borrower,  M,  by  unavoidable  force, 
and  the  bailor  seeks  to  recover  it  in 
detinue  from  W,  it  was  held  that 
M  is  a  competent  witness  for  the 
bailor.     Wright  v.  Ross,         ,     266 

6.  A  father  may  testify  in  a  criminal 
case  in  behalf  of  his  son.  Cass  v. 
State,         ....         o53 

7.  The  question  was  put  to  a  witness 
before  a  grand  jury,  "  Do  you  know 
of  any  person,  other  than  yourself. 


638 


INDEX. 


being  engaged  in  gaming  at  any 
time  within  two  years  in  the  county 
of  Muscatine  ? "  held,  that  witness 
could  nut  refuse  to  answer  on  the 
ground  that  it  would  have  a  ten- 
dency to  implicate  himself.  Rich- 
man  V.  State,     .         .         .         532 

8.  A  witness  cannot  be  justified  in 
refusing  to  answer  questions  which 
cannot,  from  their  nature,  tend  to 
criminate  him  ;  and  of  such  a  ques- 
tion he  cannot  be  the  judge,        ib. 

9.  Where,  from  the  nature  of  the 
question,  the  answer  would  inevit- 
ably criminate  the  witness,  he  is 
sole  judge,  and  may  answer  or  re- 
fuse to  answer  the  question,         ib. 

10.  A  joint  debtor  has  a  contingent 
demand  against  his  co-debtor,  which 
ia  provable  under  the  fifth  section 
of  the  general  bankrupt  law,  and 
is  barred  by  a  certificate  of  bank- 
ruptcy ;  such  bankrupt  is  therefore 
a  competent  witness  in  an  action 
against  his  co-debtor.  Frentress  v. 
MarUe,      ....        553 

See  Evidence,  9. 
Execution. 
Indictment,  6. 
Wills,  2. 


WRITS. 

1.  In  the  district  court  all  writs  should 
be  made  returnable  to  the  first  day 
of  the  term  ;  but  if  a  writ  is  defec- 
tive in  this  particular,  it  may  be 


corrected  by  the  court,  or  cured  by 
the  appearance  of  the  defendant. 
Graves  v.  Oole,  .        .        .        467 

2.  If  a  writ  of  attachment  is  made 
returnable  to  the  third  day  of  the 
term,  it  is  doubtful  whether  it  would 
justify  the  court  in  dissolving  the 
attachment  lien,  .         .         ib. 

3.  A  writ  is  not  served  upon  a  party 
in  the  manner  provided  by  statute 
by  "  leaving  an  attested  copy  at  his 
place  of  residence,  with  a  member 
of  the  family  over  the  age  of  fifteen 
years,"  unless  the  contents  of  the 
writ  are  stated.     Biltz  v.  Chambers, 

479 

See  Attestation,  2. 
Sheriff's  Retobk. 


WRITS  OF  ERROR. 

1.  The  time  of  suing  out  a  writ  of  error 
is  determined  by  the  date  of  its  ser- 
vice upon  the  clerk  to  whom  it  is 
directed.     Wright  v.  Hw/hes,     142 

2.  All  co-parties  to  a  judgment,  who 
are  entitled  to  a  writ  of  error,  must 
be  joined  as  plaintiffs  in  the  writ; 
and  if  either  of  them  refuses  to  join, 
still  his  name  may  be  used  by  giv- 
ing him  a  bond  to  indemnify  him 
against  damages  and  costs.  Huner 
v.  Reeves,    ....         190 

3.  Where  a  party  sues  out  a  writ  of 
error  coram  nobis,  but  does  not  give 
the  notice  as  required  by  statute, 
the  judgment  may  be  affirmed. 
Hears  v.  Garretson,    .        .        816 


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